THIS was a writ of error to the circuit court of the district of Columbia sitting in Alexandria. The only question in the case arose upon the following bill of exceptions.
"In this case the plaintiffs were admitted to be, and always "to have been British subjects residing in Great-Britain, "and the defendant to be and have been a native "and always a citizen of the now state of Virginia, and "this suit was commenced on the day of in "the year 1802. The debt was contracted in 1773, in " Virginia, at which time the bond was executed on which "the suit was brought. It was also admitted that the "plaintiffs had an agent authorise to collect their debts, "so far as the plaintiffs could authorise the same to be collected, "during the whole time from the date of the bond "to this day; which agent resided in the county in which "the defendant lived; also open war subsisted between " Great-Britain and Virginia, from the 19th day of April "1775, until September 1783.
"Further to repel the presumption of payment, the "plaintiffs produced the following acts of the general assembly "of Virginia upon the subject of British debts "contracted before the peace which acts are in the words "following: (Here were inserted the acts dated in March "1785, and Dec. 1787; May 1781, and Nov. 1781.) — "And the 4th article of the treaty of peace of 1783, and "the 6th article of the treaty of peace of 1794, between " Great-Britain and the United States." The plaintiffs also gave evidence that William Wilson, their agent, delivered over the bond to William Hunter, jun. in 1776; to be collected, at which time he (William Wilson) went to Europe. And when he returned in 1784 he received back the bond from W. Hunter. Some time after the year 1789, he delivered the said bond to James Johnson for collection, who returned it, and neither of those persons stated that the money, or any part was collected: that Johnson died in 1797.
Whereupon the counsel for the defendant prayed the court to instruct the jury, that from the length of time they ought to presume payment of the aforesaid bond. — Upon which the court instructed the jury that from the length of time stated in the facts above agreed on, the bond, in law, is presumed satisfied, unless they should find from the evidence that interest was paid on the bond within 20 years from the 5th of September 1775, (the time of the last payment) or that a suit, or demand was made on the said bond within 20 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.
To which opinion of the court the plaintiffs by their counsel except, c.
The defendant relied on the plea of payment, and on the length of time to support it.
MARSHALL, Ch. J.
There can be no doubt of this fact. The only difficulty is to shew that it requires 20 years after the removal of the impediments, to create the presumption of payment. It may be a doubt, whether the same time after the removal of the impediments, is necessary to raise the presumption, as if the bond had borne date at the time of such removal.
Swann, for defendant, contended that the time between the 19th of April, 1775, and Sept. 1783, being deducted from the age of the bond when put in suit, the residue being about 20 years, and 6 months, should be considered as the lapse of time which was to induce the presumption that the disability of the plaintiff ceased on the ratification of the treaty of peace. There are no cases decided in the superior courts of Virginia, in which the plea of disability of the plaintiff, as being a British subject, has been allowed since the peace. The cases cited are county court cases, and do not appear in the record. They are facts which this court cannot notice.
But if we travel out of the record, other cases may be cited from other counties, in which contrary decisions have taken place. It is a fact that in Fairfax county, where the defendant always resided, British debts could always be recovered since the year 1783. If the cases cited against us are admitted to rebut the presumption, this fact is equally strong, and ought to be admitted to support it.
Lee in reply. Although it was stipulated by the treaty that all legal impediments to the recovery of debts should be removed, yet that did not alter the existing state of things. The obnoxious, laws remained in full force in practice. The fact was, that the legal impediments were not removed. We are not now to consider what the law ought to have been, but what it was in practice. For if the impossibility of recovering the debt still remained, it destroyed all presumption arising from the lapse of time.
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 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 in 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.