#### JAMES R. WOOD vs. REDDICK DEEN.

f he fact of the insolvency of a debtor, from the time his debt became due, is proper evidence to be submitted to a jury, and estimated by them in considering whether the presumption of payment of a bond, under the act of 1836, (1 Rev. Stat. c. 63, s, 13,) is rebutted.

This answer to the presumption will be more or less forcible, according to the nature and degree of the insolvency.

This was an action of debt on a bond, payable to the plaintiff, and executed by the defendant, for the sum of two hundred and fifty-ffve dollars fifty cents, bearing date the 8th day of January, 1823, and payable the 1st day of January following. The suit was instituted in Anson Superior Court of Law, on the 16th day of August, 1838. The defendant relied upon the plea of payment, supported by the presumption, arising under the act of 1826, from lapse of time. To rebut this presumption, the plaintiff offered evidence of the defendant’s being in insolvent circumstances, *231though no evidence was offered of his having taken the benefit of any act of insolvency; and no other fact or circumstance was offered in evidence by the plaintiff to rebut the presumption. His honor, Judge Settle, charged the jury that if they believed the defendant to have been in insolvent circumstances at the time the bond became due, and to have continued so ever since, and that the plaintiff had, for that reason, forborne to sue, they might find that it rebutted the presumption, which they were bound to make from the lapse of time unexplained, that the bond had been paid.

The jury found a verdict for the plaintiff. A new trial was moved for by the defendant and refused, and a judgment rendered for the plaintiff, from which the defendant appealed to the Supreme Cou-rt.

Mendenhall for the plaintiff.

Strange and Winston for the defendant.

Ruffin, Chief Justice.

The point raised in this case, is one of those raised and decided in McKinder v. Littlejohn at the last term. Our opinion then agrees with that of his Honor, now under revision. It is founded on the natural inference that a man has not done that, which, it appears, he was not able to do. The inference from insolvency will, indeed, be more or less forcible, according to its notoriety and duration, and the degree or hopelessness of it, if the expression may be allowed. Suppose it to be proved that the debt- or was discharged on his oath of insolvency before the debt fell due, and that ever since he had been a beggar in the street, or a pauper on the parish; the conclusion would'be so morally and obviously certain, that there could be no danger in telling the jury that there could not be a presumption of payment in such a case. No one ought tobe required to commit the folly of suing a beggar. The facts here are indeed not so strong. But they partake of the same nature, and are therefore fit for the consideration of the jury, as tending to satisfy them that, in fact and truth, the debt was never paid. In that way only was the evidence left to the jury in this case. They may have erred in the conclusion of fact drawn by them. But that is not for our consid*232eration. The fact, that the debt was or was not paid, was the material enquiry, and to that enquiry this evidence was in reason; and we think in law, relevant.

Per. Curiam. Judgment of the Superior Court affirmed.