The opinion of the Court was drawn up by
Wells J.— This is an action of debt, brought upon a judgment, by the plaintiff, as surviving partner. The judgment was rendered on the third Tuesday of June, 1825. The writ bears date June 1, 1846.
The defence is the presumption of payment, arising from the lapse of more than twenty years, since the rendition of the judgment.
The parties agree, that the Court may decide the case upon the evidence.
It appears from the evidence, that the defendant, in consequence of his poverty, existing nearly all of the time, since the judgment was rendered, has been unable to pay the debt, and by the deposition of the plaintiff’s son, that about thirteen years ago, the defendant, being called on by the plaintiff, to “ settle that old execution, which he had held so long against him,” replied, “ he would come up soon and do something about it.” The precise answer made, could not be stated by the deponent, but he gives the purport of it. The residue of the testimony adds nothing material, to what has been already stated. By Rev. Stat. c. 146, § 25, a judgment “ shall be presumed to be paid and satisfied, at the expiration of twenty years after any duty or obligation, accrued by virtue of such judgment,” &c.
The act does not make the twenty years a bar, by limitation, but creates a presumption of payment. It is like the common *84law provision, presuming a bond to be paid after the lapse of twenty years.
The statute furnishes a presumption of payment, commencing at a fixed and certain time.
Evidence is presumptive, when the fact itself is not proved by direct testimony, but it is to be inferred from circumstances, which necessarily or usually attend such facts. And a presumption can only be relied on, until the contrary is actually proved. 1 Phil. on Ev. 117. In Denny v. Eddy, 22 Pick. 533, it is decided, in the construction of a statute, similar to ours, that presumption of payment may be rebutted.
If the legislature had intended the presumption should stand, uncontrolled by evidence, it would have fixed an absolute bar of twenty years, by way of limitation, as it has done by $ 11, of the same chapter, in relation to actions on contracts, not limited by any of the other foregoing sections, or any other law of the State.
Testimony then, tending to rebut the presumption, is admissible in evidence. But it may be difficult to find any judicial decision, which points out, with precision, the effect to be given to any one piece of evidence, entitled to consideration, in repelling a presumption. For such evidence must be weighed by a jury, and the law cannot furnish any balance, by which to test its weight. It is a part of their duty, to determine it, for themselves.
In Fladong v. Winter, 19 Vesey, 196, Lord Eldon says, “ taking this to be a case for the presumption, it may be met by evidence to satisfy a jury, that the debtor had not the opportunity or means of paying. The latter, I take to be the principle of Wynne v. Waring,” which was a case, cited at the bar, as having been previously decided.
In Hillary v. Waller, 12 Vesey, 266, Lord Erskine says, upon twenty years, the presumption of payment will hold, “ unless insolvency, or a state approaching it, can be shown, or that the party was a near relation, or the absence of the party having a right to the money, or something which repels the presumption, that a man is always ready to enjoy what is his own.
*85In Oswald v. Leigh, 1 D. & E. 148, Buller Justice says, “ with regard to the rulo of twenty years, where no demand has been made during that time, that it is only a circumstance for the jury to find presumption upon, and is in itself no legal bar.” Again he says, that “ this doctrine of twenty years presumption was first taken up by Lord Hale.” In this he was followed by Lord Holt, who held, “ that if a bond be of twenty years standing, and no demand proved thereon, or good cause of so long forbearance shown, on solvit ad diem, he should intend it paid.”
In Clark v. Hopkins, 7 Johns. R. 555, it is said by the court, that it has been decided, that after eighteen or twenty years, a bond will be presumed to have been paid. The obligee ought to show a demand of payment, and an acknowledgment of the debt, wdthin that time, to rebut this presumption.
Where the mortgagee has never entered into possession of the mortgaged premises, twenty years without any demand, or any interest having been paid, has always been deemed a sufficient, length of time to warrant the presumption of satisfaction. Jackson v. Wood, 12 Johns. R. 242; Giles v. Barremore, 5 Johns. Chan. R. 545. Howland v. Shurtleff, 2 Metc. 26, establishes a similar principle.
In McLellan v. Crofton, 6 Greenl. 334, the instruction given to the jury was, that mere poverty did not rebut the presumption, but that the debtor’s absence from the country, during the twenty years, wms sufficient for that purpose. The presumption having been rebutted by absence, it was not material to inquire, whether the instruction as to the poverty of the debtor was correct. Both facts existed, and the court cite authorities, to show that poverty and absence from the State, did repel the presumption.
Insanity and poverty, poverty and absence from the State a number of years, are circumstances, repelling the presumption. 3 Dane, c. 94, art. 3. Such circumstances are evidence, to be submitted to a jury.
In the present case, there are three circumstances, tending to repel the presumption, established by the statute.
*861. The poverty of the debtor.
2. A demand of payment.
3. The answer made to the demand.
The question is not, whether either of these circumstances alone is sufficient to remove the defence, but, sitting as a jury, ought we to be satisfied upon them all, that the presumption is repelled. Although if the case were presented to a jury, and only one of these circumstances existed, there could be no legal ground for refusing to allow it to be laid before them for their consideration.
It is true that a poor man may pay a small debt, but the improbability, that he has paid it, increases in proportion to the magnitude of the debt, and the extremity of his poverty.
A demand of payment may be made, when the debt has actually been paid, but a reply, that the debt had been paid, would impair the force of the demand. In the cases which have been cited, much stress is laid upon the want of a demand, in creating the presumption. If it could spring up, through the want of a demand, surely it might be repelled by making one. The presumption seems to have its origin in the dormant state, and -want of vigilance on the part of the creditor. The expression used in 4 Bur. 1963, “ bonds, which have lain dormant, are presumed to be satisfied, after twenty years,” and similar expressions in other cases, indicate a want of activity on the part of the creditor, as giving rise to the idea of payment. When a debt is due, it accords with ordinary experience, that the creditor will exert himself to collect it; if he remits all efforts for twenty years, the inference arises, that the debt is not due, that it has been paid, or that certain equities exist between him and the debtor, precluding a collection of it. A demand is evidence, the effect of it to be determined by the jury.
When the defendant was called upon to settle the execution he did not deny the existence of the debt, but promised to do something about it. He employed the usual language of procrastination ; the fair import of it is, that he is a debtor, and that he will soon do something to discharge his debt. Here *87then is an implied admission of an obligation to do something, manifested by a promise. From the promise to do something, it is to be inferred, that the person making the promise, is bound to do it. Although the meaning of the defendant maybe considered obscure, and not clear and positive, yet he does not deny the debt, but declares his disposition to act in relation to it. His answer is responsive to the request, to settle the execution.
Taking all the circumstances together, the mind is impressed with a satisfactory belief, that the debt is due, and that the presumption of payment, is repelled by the evidence. Such, we believe, ought to be the verdict of a jury upon these facts, and in our opinion, the defendant must be defaulted.