Dunlop & Co. v. Ball

Marshall, Ch. J., delivered the opinion of the-court. — The only circumstance which could create a question in this case is, that twenty years had not elapsed, exclusive of the period during which the-plaintiffs were under a legal disability to recover, before the action was-brought. The principle, upon which the presumption of payment arises from the lapse of time, is a reasonable principle, and may be rebutted by any facts-which destroy the reason of the rule. That no presumption could arise- *108 ■during a state of war, in which the plaintiff was an alien enemy, is too clear to admit of doubt. But it is not so clear, that upon a bond so old as this, the same length of time, after the removal of the disability, is necessary to raise the presumption, as would be required, if the bond had borne-■date at the time of such removal. It appears, from the decisions of the courts of Virginia, from the pleas in bar in the federal courts, and particularly from the observations of the ■chancellor of Virginia, in the case cited, that it was the general understanding of the inhabitants of that state, that British debts could not be recovered : and until the year 1793, there was no decision of the superior courts that such debts were recoverable. The only question is whether, in case of an old debt, the same time is •required to raise the presumption, as in the case of a debt accruing since the impediments have been removed. In such a case, it is not easy to establish a new rule, and *the court think it best to adhere to the old decisions, that twenty years must have elapsed, exclusive of the period of the plaintiff’s disability; and are of opinion, that the circuit court erred in ■directing the jury that payment ought to be presumed. The judgment of the court is entered upon the minutes, in the following terms : — The Court having heard the arguments of counsel, and maturely ■considered the same, is of opinion (and do adjudge, order, and decree accordingly), that the circuit court erred in instructing the jury, “that from the length of time, they were to presume the bond, in the record mentioned, to be satisfied, unless they should find, from the evidence, that interest was paid on the bond, within twenty years from the 5th of September 1775 (the time of the last payment), or that a suit or demand was made on said bond, within twenty years from, the last-mentioned time, exclusive, in both cases, ■of five years, five months and twenty days, taken out of the act of limitations ;” there being circumstances m this case which oppose the presumption which would have arisen from the length of time which has elapsed since the date of the bond. And this court doth further adjudge, order ■and decree, that this cause be remanded to the said circuit court, to be there tried, with directions that there is no presumption of payment of the said •bond, as directed by the said circuit court.