Dissenting Opinion by
Mr. Justice Simpson:I dissent from the judgment in this case.
The opinion of the majority fairly states the testimony of Mr. Gest when it says his assertion that the debt has not been paid is “based......in part on his own knowledge and in part on the books and records of the company, and the manner in which its trust business is conducted.” As he was but one of a number of employees to whom a payment might have been made, he could not have had personal knowledge except as regards payment to himself, and hence his opinion, based on his analysis of the books, not themselves admissible in evidence for this purpose, could not rebut the presumption of payment to use-plaintiff.
*425The argument attempted to he built on the presumption of innocence is equally fallacious. It is, of course, possible that the debt may have been paid to any one of a number of use-plaintiff’s employees, and lost or stolen by an outside party before return for entry on the books, and hence the presumption of the innocence of those employees would exist without affecting the case in any way. Moreover, the law does not permit one presumption to be the sole basis of another (Douglass v. Mitchell’s Executors, 35 Pa. 440; Phila. City Passenger Ry. Co. v. Henrice, 92 Pa. 431, 434; Welsh v. Erie & Wyoming Valley R. R. Co., 181 Pa. 461), and hence a presumption of innocence cannot be made the basis of a presumption of nonpayment. Much less does it permit the presumption of innocence of each one of a number of its employees to be added together to make one general presumption of innocence, and therefrom deduce presumption of nonpayment to it. To apply the presumption of innocence here would wholly destroy this beneficial principle of law, so far as corporations are concerned, for they can act only by agents, can always say all moneys paid to their agents should have been entered in their books, none such appear there, and, hence, under this presumption, it must be presumed the debt has not been paid. No reason exists why corporations should be thus favored; and recent experiences with bank and trust company employees ought to convince use-plaintiff, even if all others remain sceptical, that the presumption of innocence is not so conclusive as to justify the belief that its stockholders or the law can safely rely thereupon in matters of this kind.
Nor does the action of defendant and the court below on the rule to dissolve the attachment for want of due prosecution, affect the question here raised. From its nature this matter had to be decided entirely by the record, without oral evidence to supplement it, unless it was averred defendant requested a delay in proceeding, which is not alleged here. If defendant had produced a *426receipt in full he would not have advanced a single step in the determination of whether there had or had not been due prosecution of the attachment; and hence as only those matters which stand in the direct line of a judgment or decree are conclusive or even evidence in later proceedings between the parties (Tams v. Lewis, 42 Pa. 402, 410; Sheble v. Strong, 128 Pa. 315, 322; Maloney v. Bartlett, 172 Pa. 284; Amrhein v. Quaker City Dye Works, 192 Pa. 253), appellant’s action in withdrawing his replication, and arguing his rule on the record alone — as he was compelled to do in any event— cannot be an admission or adjudication of nonpayment. Had he replied and admitted the statement, or answered all else and omitted to refer to this, some slight basis for an argument might be found; but failure to answer because an answer would have been useless, as admittedly it would have been here, raises no presumption whatever. It is only when there is a duty to speak that an unfavorable inference is drawn from one’s silence. Forgetting this principle, the majority say in one sentence that defendant “permitted that averment to stand unchallenged and submitted the question to the court on the pleadings — thereby admitting the truth of the answer,” and then go equally wrong by adding “Waiving the question of its conclusiveness as an admission of record, it was evidence tending to rebut the presumption of payment,” that is, that which is wholly immaterial and hence not evidence for any purpose, is still “evidence tending to rebut the presumption of payment”: “even the worthy Homer sometimes nods.” Moreover, as the court below expressly and correctly ruled this point in appellant’s favor at the trial, it became the law of the case for the purpose of this appeal, subject only to review at the instance of use-plaintiff if later it takes an appeal. Doubtless the conclusion by the court below on this point was because, as stated by appellant and not questioned by appellee, that “the court discharged the rule [in order that] plaintiff should have an opportunity to rebut the *427presumption arising out of such a lapse of time, and this, as above noted, is what actually occurred.” The majority further ask “why proceed with the attachment if it was already dead by reason of payment of the judgment?” The answer is plain: If defendant thought this was possibly the quickest way to get rid of the attachment which locked up his money, he had the right to test it, and his so doing does not properly subject him to criticism from any source.
Nor does defendant’s nonresidence, assuming it to have existed all the time, or use-plaintiil’s ignorance of assets belonging to him (though for nearly twenty years it knew he was prosecuting the claim which at the end of that period ripened into a decree in his favor), amount to anything, for nonresidence and actual proof of poverty or insolvency, are not even circumstances to rebut the presumption: Kline v. Kline, 20 Pa. 503; Geiger’s Est., 14 Pa. Superior Ct. 523, 527.
Nor has the long litigation in the United States courts any bearing on the present issue. It had nothing whatever to do with the judgment here, which would have continued whether or not this debt was paid, and did not stand in the way of use-plaintiff issuing a sci. fa. to revive before the presumption of payment arose, if in fact there had been no payment. This or any other plaintiff could always find a personal excuse for not keeping a judgment alive, by saying it did not know when or how it could be collected, and so waited until something turned up; and this may have caused the majority to think “the evidence of nonpayment is satisfactory and convincing,” forgetting that “The inquiry is not what has a moral tendency to persuade the mind, but what has a legal tendency”: Douglass v. Mitchell’s Executors, 35 Pa. 440, 445.
While it is unquestionably true, “In passing upon the sufficiency of the testimony to rebut the presumption of payment, the court must consider the united strength of all the evidence and circumstances,” and not each in*428dividual fact standing alone; this only means that where each piece of evidence by itself falls short of proving the ultimate fact, or any intermediate fact bearing thereon, each may be added to that which precedes and follows, and if all taken together complete the chain of proof of the ultimate fact, its “united strength” is to be considered and not its individual elements. It cannot mean, however, that a series of links, no one of which has been closed, can be joined together by inapplicable presumptions, so as to complete the chain of proof. To illustrate: Piggott and Wright were trust officers of plaintiff, authorized to receive payment of this debt; the burden of proof is on plaintiff to show it was not paid to them: Mr. Gest’s testimony does not cover that; neither their carefulness nor integrity was shown; the presumption of innocence does not apply; defendant’s nonresidence and plaintiff’s ignorance of his having assets are not even circumstances to rebut the presumption of payment; neither the proceedings on the rule to dissolve the attachment nor the litigation in the federal courts have any relevancy to the question; no one of these matters is connected with or supplementary to any other; and yet taken together they are supposed in some unstated way to piece out each other’s insufficiencies, and overthrow “this presumption [of payment which] is very strong and is favored in law as tending to the repose of society and the discouragement of ‘stale claims’”: Kline v. Kline, supra; Porter v. Nelson, 121 Pa. 628, 637. In law as in mathematics, however, five times nothing must ever remain nothing.
Finally, entirely aside from the foregoing, use-plaintiff’s attempt to rebut the presumption of payment wholly failed for the reason that there is neither evidence, inference nor presumption covering any part of the period from November 14, 1895, when the attachment was issued by the legal plaintiff, until February 4, 1897, when the judgment was marked to use (every day of which was more than twenty years before February 28, 1919, *429when the next succeeding step was taken of record), unless the withdrawal of the replication sur rule to dissolve the attachment, and the action of the court there-' on, had some effect on the matter, which, for the reasons heretofore expressed, they clearly had not. If these fifteen months may be left out of consideration, why not fifteen years, or any other longer or shorter period? If they may not, as surely they ought not, then a necessary link in the chain of proof is lacking, and the presumption remains unrebutted.
What has been said disposes of the case; but there is a matter, incidentally referred to, which affects the practice of the courts, and, if not explained, may lead to difficulties in other cases. The majority say “by conceding that the case hinged on questions of law, defendant impliedly admitted the credibility of the witness, but challenged the sufficiency of the evidence.” For the purpose of determining the question of defendant’s right to binding instructions this was undoubtedly so; but it was not, under our practice, a continuing admission for all purposes. In early days, it was sometimes held, outside of Pennsylvania, that where both sides requested binding instructions it was in effect a waiver of a right of trial by jury, and justified the court — though disagreeing with both parties as to the effect of the evidence ■ — in entering such judgment as in its view the facts warranted. In later years the court so holding has been announcing exceptions to this rule, which need not be considered, however, since the rule itself never found acceptance with us. We have always held that a waiver of a jury trial must be general and clearly expressed; and hence, unless the parties agree otherwise, if the trial judge thinks the evidence does not justify the binding instructions asked for by them, he can only overrule their contentions and submit the issues of fact to the constitutional trier of disputed facts, for not otherwise can we have a “trial by jury [which] shall be as heretofore and the right thereof remain inviolate.”
*430I would reverse the judgment of the court below and enter judgment for defendant non obstante veredicto.
Me. Justice Kephart joined in this dissent.