Pearsall v. . Houston

Rattle, J. It is settled that the payment of a bond cannot. be presumed as to one of several obligors, while it is rebutted as to the others; payment as to one, whether actual or presumed, being payment as to all. McKeethan v. Atkinson, I Jones’ Rep. 421; Lowe v. Sowell, ante, 67. It cannot be doubted that in the present case the presumption of payment arose in favor of Jesse Butts, one of the sureties, who was fully able to pay the bond for five or six years after it fell due. See McKinder v. Littlejohn, 1 Ire. Rep. 66, and Wood v. Deen, Ibid 230. The declaration of the defendant, so far from being an acknowledgement that Butts had not paid the debt, rather favored the presumption that he had. *348 It is a little singular too, that the plaintiff, who waived a judgment in his favor in 1842, upon a promise by the defendant to arrange it, should have taken no other steps to collect the debt for ten years. That, too, favors the presumption that Butts had done his duty in paying over to the plaintiff the money which he received from the defendant, to be applied in discharge of the debt. The presumption in favor of one of the obligors is a payment as to all. The judgment is affirmed. Per Curiam. Judgment affirmed.