Dissent of
Chief Justice Bibb.In December, 1825, Herndon’s executors sued and obtained judgment against James Bartlett’s executor, Ireland, by warrant before a justice. Ireland appealed to the circuit court. By' consent, the cause was “submitted to tbe court for final judgment without jury.” Upon hearing the parties, the circuit court reversed the judgment of the justice, and gave judgment for the executor, Ireland. The executors of Herndon moved the court to set aside the judgment, and grant a new trial; which motion was overruled. The executors of Herndon filed a bill of exceptions to the opinion of the court in refusing to set aside the judgment.
The bill of exceptions states, that the parties at the trial agreed to dispense with a jury, and to submit the law. and evidence to the court, without the formality of drawing the pleadings.
The plaintiff in the warrant, gave in evidence the record of the proceedings in the District Court of *453Virginia, hoi den in Fredericksburg, in an action in which James Bartiett, as attorney in fact for John White, declared against the said executors of Edward Herndon, in assumpsit; that the said executors and the plaintiff accounted together for moneys due and owing from their testator, Edward Herndon, in his lifetime, to said John White, and upon that account the defendants, executors of Herndon, were found in arrear to said John White, in the sum of £391 8s. 5d. and in consideration thereof, assumed to pay said sum to the said plaintiff. The defendants pleaded non assumpsit. After jury sworn to try the issue, the plaintiff suffered a non suit, and thereupon the said defendants had judgment against said plaintiff for costs, amounting to $29 39. The suit was commenced in October, 1803; the judgment was rendered in May, 1S06.
Dissent of ch. jus. Bibb.The executors issued an execution, on the 28th May, 1806, against the goods and chattels of the plaintiff, which has not been returned into the office, as the record.states. The record is certified in due form of law, on the 6th June, 1818.
It was admitted by Ireland, that be was the executor of James Bartlett.
Tire plaintiffs in the warrant, the executors, of Herndon, were, and ever had been, non residents of Kentucky.
James Bartlett had resided in Kentucky twenty years, and was always solvent.
Two or three years before the warrant, the record was presented to Bartlett for payment, as the witness was informed, by Ireland, Bartlett replied he would take the advice of counsel, and was advised he was not bound to pay it, and he accordingly refused. This, the bill of exception states, was ail the evidence,
It was argued for the executor, that the judgment of Virginia is against White. I think the judgment is against Bartlett. It may have been, that the awkward mode ef declaring, in the name of Bartlett, attorney in fact for White, upon a demand accruing *454to White, and laying an assumpsit to the plaintiff, Bartlett, which he could not prove, although the demand might have been due to White, produced the non suit. But James Bartlett was the plaintiff’ who was non suit, and against whom judgment for costs was given.
Dhsent of oh. jus. Bibb.Payment, release, or aequitance, maybe presumed from length of time. The lapse of time is presumptive evidence of such facts. It is so treated in Shield vs. Perkins, 2 Bibb, 387. This presumption may be repelled by circumstances; and it is true, that residence in different states may be used to re,pel the presumption of payment, or other acquitance. But that, also, is but présumptive evidence against presumptive evidence. And I think the presumption of satisfaction is very strongly fortified, by the fact, that execution issued speedily after judgment, which execution has never been returned,. So that, for aught that appears, satisfaction might have been received by force of the execution. Questions of payment of bonds have been left to the jury, upon presumption, from sixteen years. A demand was made of the testator in his lifetime; he refused to pay, and returned for further answer, that he was not bound to pay. This was no acknowledgment of a debt, but directly the reverse. Yet the refusal is not pursued by action; the suit was still delayed until the death of Bartlett, and then it is prosecuted against his executor. Although the judgment is technically against Bartlett, yet the demand sued for was evidently accruing to White; he may have paid it; where he lived is not stated. The presumption of satisfaction arising from such great length of time, near twenty years, is matter of fact; difference of residence does not, as matter of law, do away that presumption positively;'that also is matter to be left to a jury. The judge in this case was substituted in place of the jury, by agreement of the parties; he presumed payment. Suppose a jury had presumed payment or satisfaction, ought the appellate court to disturb the verdict? Are there not strong circumstances in favor of such an inference? Satisfaction, or no satisfaction, must at best remain in dubio, after tajsing into consideration *455the difference of residence of tiie parties, and weighing that against length of time and the other circumstances. The residence has not been changed since judgment. Bartlett lived in Kentucky when the suit was brought. Considering that presumption of satisfaction from length of time is founded on a great principle of public policy, necessary tp the repose and security of society, I do not think this court would have disturbed the verdict of a jury for the defendant; and Í think the case stands before this court as if a jury had tried the cause. According to the.established doctrines of this court, a new trial will not be granted, where a jury have found a verdict upon presumptive evidence on the one side and presumptive evidence on the other, where the scales of evidence are nearly equipoised. As a juryman, I should find for the defendant; and I cannot consent to reverse- the judgment of the circuit-judge for so finding.
Dissent of ch.jus. Bibb. Daña for plaintiff; Crittenden for defendant.My opinion is, that the judgment be affirmed'; and by the opinion of the majority of the court final judgment is to be entered for the executors of Herndon.