The right of action having accrued in this case prior to the year 1868, it is to be determined by the law as it existed at the date of the contract.
We are of opinion that the court erred in instructing the jury, that no presumption of payment could exist as to the defendant John E. Brown, because of his having departed from the state before the bond sued on had matured, and his being continuously absent since.
The proviso, contained in Rev. Code, ch. 65, § 10, whereby it is declared that as to a debtor, non-resident at the time a cause of action against him shall accrue, the plaintiff may have his action upon his return within the time limited for such actions, has no application to the case of a presumed payment arising from the lapse of time under the act of 1826, (Rev. Code, ch. 65, § 18.) It formed a part of the act of 1715, and had exclusive reference to the statute of limitations proper.
It is the duty of a debtor, regardless of his place of residence, to seek his creditor, for the purpose of making payment; and there will be a presumption in favor of his having done so, in every instance, after the lapse of the time which the statute prescribes.
Though not possessing the force of an absolute statutory bar, the presumption of payment under such circumstances is very.strong, and is favored by the law as tending to the repose of society and the discouragement of stale claims. It is one, indeed, that may be rebutted by proof of circumstances which raises a stronger counter-presumption, and as was said in McKinder v. Littejohn, 4 Ired., 198, evidence of a *379change of residence, or even of a distant residence, may be received for this purpose in aid of other evidence, such as the insolvency and general destitution of the debtor.
But we know of no authority proceeding from this, or any other court, for saying that a mere change of residence is of itself sufficient, wholly to prevent the presumption, which the law, by an intendment of its own, raises from the lapse of the prescribed number of years, without somer thing having been done on the part of the creditor, to enforce the satisfaction of his demand. And more especially would such a rule seem out of place in a case in which, like the present one, the instrument sued on was on its face made payable beyond the limits of this state, and the plaintiff himself so resided, and could have exactly the same remedies against the defendant, and the same opportunity to enforce them, after his removal, that he before possessed. The tribunals of the state of California, whither the defendant removed, were as open to the plaintiff as the courts of this state, or even as the courts of his own domicile; and if he would not avail himself of them, he should not be allowed to take advantage of his own laches to defeat a wholsesome provision of the law.
Nor can we concur in the instructions, as given, with reference to the effect, which the admissions and promises of one defendant should have upon the rights and obligations of the other. In England, as well as in most of the states of the Union, it is the generally admitted doctrine, that a payment made by one obligor in a bond before the’ expiration of the time necessary to raise a presumption of payment and within the prescribed period before the bringing of the action, will take the case out of the rule of presumptions as to all his coobligors. Various reasons have been assigned for thus holding.' In some of the cases it i§ said that a payment is an unequivocal admission of the debt as still subsisting, more reliable than any mere promise, as *380being more deliberately made and less subject to misconstruction. Again, it is said to be an act, which inures to the benefit of all the obligors alike, and of which each one could avail himself, in case he were sued on the bond within the time, and as they might take the advantage of it, so all must bejj bound by it. The correctness of the rule itself has been gravely doubted by some of the courts of the very highest respectability, and finally after some fluctuation in its decisions, it has been expressly repudiated by the court of appeals of the state of New York in Shoemaker v. Benedict, 1 Kernan, 176, and the broad ground taken, that it is not within the power of the joint obligor, even by an actual payment on the bond, to bind the others — and such is said in 3 Parsons on Contracts, 80, to be the tendency of the modern adjudications on'the point.
In this state, however, the rule, which allows the obligations of one coobligor to' be affected by such a payment made by another, has been directly applied in McKeethan v. Atkinson, 1 Jones, 421; Wilfong v. Cline, Ib., 499; Lowe v. Sowell, 3 Jones, 67, and has been clearly recognized in a number of other decisions. It is now too firmly established to admit of a thought of its being disturbed by us. But farther than this our courts have never gone; and there seems to be no warrant of authority for the position that by a naked acknowledgment of the debt and a promise to pay it, whenever made and however unqualified they may be, can one obligor bind his coobligor, and deprive him of the benefit of that presumption which the law makes in his behalf.
In Lane v. Richardson, 79 N. C., 159, we concede, there is a dictum, which appears at first sight to give it some support, but upon a closer examination it becomes perfectly manifest that the learned judge, who delivered the opinion of the court, was under no necessity to distinguish between the effect of a payment and that of a mere promise, and that in fact he did not undertake to do so. But in speaking of *381the effect of “the admissions of one joint debtors' he had in his mind, only, the payment that had been actually made in the case, and the effect of which was the very matter to be determined. Whenever-the question as to the effect of a bare acknowledgment has been presented, so as to render a decision upon it necessary and proper, the rule adopted by the court, as we understand it, has been the very opposite-of that laid down by His Honor in the court below. Though somewhat obscurely reported, the point was presented in Buie v. Buie, 2 Ired., 87, and it was there held that even if there should be evidence of an acknowledgement sufficient to repel the presumption of payment as to one of two of the makers of a bond, still if the presumption was not repelled as to the other, the case would come within the rule as to both, and both would be protected by the statutory presumption.
Whatever obscurity there may have been about this case, it was afterwards entirely removed by the opinion delivered in Lowe v. Sowell, supra, in which the late Chief Justice Pearson uses the following language ; “ In 1841, while on the superior court bench, on the supposition that there was evidence to repel the presumption of payment in regard to one of the defendants, I instructed the jury, if the presumption was not repelled also in regard to the other defendant, they should find the issue on the plea of payment in favor of both, for if the presumption held as to one, payment by him discharged the debt. This ruling was approved by the supreme court, and the distinction was taken between matter which extinguished the debt, and that which only was a bar to the remedy. Buie v. Buie, 2 Ired., 87."
The rule, as thus expounded, was reiterated and enforced in Pearall v. Houston, 3 Jones, 346, and we do not feel at liberty at this day to depart from it.
All the cases referred to by counsel, in support of the plaintiff’s position, had referenee to unsealed instruments, *382and therefore fell under the “ statute of limitations” proper, which affected only the remedy of the parties plaintiff, and as we have just seen, the law makes distinction between such cases and those in which the statute raises a presumption, such as affects the debt itself, and if unrebutted, extinguishes it.
It may be difficult to perceive any just principle upon which to base such a distinction, but it has been clearly marked out by the court and constantly observed. Indeed, if resort be had in the matter to principle, as distinguished from precedent, it is impossible to understand how, in any case, the unauthorized acts and declarations of one party, though he be jointly bound, can be admitted to enlarge the promises or extend the obligations of another, and hence we are not disposed to push the rule one inch beyond the requirements of the adjudicated cases.
To adopt the conclusion of the court below is in effect to say, that one of two joint obligors may, by an acknowledgment of the debt made on the last day of the ninth year after the execution of the bond, so operate upon the liability of his joint obligor, as to continue it throughout another statutory period of ten years; and this, without the assent of the latter, or, as it may be, even without his knowledge.
We, therefore, feel constrained to reverse the judgment of the court below, though with some reluctance, since as disclosed in the evidence, we are inclined to the opinion that the promises'of each one of the defendants may have been sufficient to repel the presumption as to himself, and that if the case had been so put to the jury, they might properly have returned the verdict they did against both.
Inasmuch, however, as it is impossible to know but that the verdict against one was the result of evidence with regard to the admissions and promises of the other, there can be no alternative other than a venire de novo.
Error. Venire de novo.