#### IMRI SPRUILL vs. FREDERIC DAVENPORT & WIFE.

The act of 1826, (Rev. Stat. ch. 65, sec. 13,) making the lapse of ten years a presumption of payment, applies to simple contracts as well as to sealed instruments.

-But this legal presumption arises only on the expiration of ten years from the time the cause of action accrued. Therefore when the action was upon a receipt of the defendants’ testator, who was a constable, for notes belonging to the plaintiff, to collect, and it did not appear by any actual proof, that any demand had been made by the plaintiff, until fifteen years after the date of the receipt, but this demand was made within three years before the bringing of this action. Held, that the Judge below erred in instructing the jury, that though there was no demand before the one proved, and therefore the ordinary statute of limitations could not run, yet that after the lapse of ten years from the date of the receipt, the law presumed the claim settled, unless the contrary appeared.

But the Judge might very properly have left to the jury the great length of time, whieh had elapsed, as a circumstance from which they might have inferred, that either a settlement had been made, or at least that there had been a demand for a settlement so long ago as to let in the operation of the statute of limitations.

The case of the State Bank v. Locke, 4 Dev. 529 cited and approved.

Appeal from the Superior Court of Law of Tyrrell county, at the Spring Term, 1845, his Honor Judge Battle presiding.

This was an action of assumpsit, brought on the 23d of May, 1843, upon a promise of the testator of the defendant’s to collect certain debts due to the plaintiff, and pay over the money to the plaintiff or his order, and for money had and received. The pleas were, the general issue, payment and the statute of limitations.

Upon the trial, the plaintiff gave in evidence a receipt, dated March 11th, 1826, from the testator to the plaintiff, for upwards of forty small debts, due by bonds, notes, and accounts from sundry persons to the plaintiff, which the testator promised to collect and pay over to the plaintiff. The debts are of various amounts, from the sum of $50, down to 25 cents.

*664The receipt is set forth at large in the case sent up ; and at f°°t of it is a receipt given by the plaintiff in the following words: “ October 30th, 1828. Then received of the within inventory, thirty-one dollars.” (Signed)

“ IMRI SPRUILL.”

The plaintiff proved by witnesses, that nearly all the debtors were good for the debts, and that the testator collected some of them soon after he had them, and might have collected the others. He also produced witnesses, who deposed that the plaintiff was the son of the testator, and that, soon after the death of the latter in 1841, the plaintiff went to the house of the defendant, Amelia, who was the widow of the testator, and has since intermarried with the other defendant, and demanded of her a settlement of the receipt, and that she replied, that she knew nothing of such a paper, and was not prepared, to settle it; but requested the plaintiff to leave it with Mr. Halsey, a gentleman in the neighborhood, to whose house she was going in a few days, and that she would then attend to it, or settle it — but which of those two expressions she used, the witnesses could not say. Another witness deposed, that the defendant said, she did not believe her husband owed the plaintiff’ any thing, and that she would see Mr! Halsey respecting it.

The court instructed the jury, that the statute of limitations did not bar, because the plaintiff had no right of action until a demand, and there was no demand in this case until 1841, and the suit was brought within three years thereafter. And the court further informed the jury, that, although a case of this kind is not embraced in the statute, fixing the time in which presumption of payment shall be made in certain cases, yet the court could not but think, that a presumption of payment should arise from a long delay of a principal to call on his agent, and that the law would, for that purpose, fix upon ten years, in analogy to the time mentioned in the statute; That, after the lapse of ten years, the law presumed the claim settled, unless the plaintiff showed the contrary by an acknowledgment of the party or otherwise ; and that if the jury *665thought the defendant, Amelia, meant to admit the justice of the claim and promise to pay it, the plaintiff would be entitled to recover; but if she only meant that she would consult Mr. Halsey, and promised to pay in case he should advise her was a just claim, it would not rebut the presumption. The jury found that the demand had been paid by the testator, and from the judgment the plaintiff appealed;

Heath for the plaintiff..

No counsel in this Court for the defendants.

Ruffin, C. .T.

There seems te be so strong a probability, that the verdict is according to the justice of the case, and, indeed, the law also, that the Court has been very reluctant to award a venire de novo. But, upon consideration, we believe we are obliged to do so.

Throughout the directions to the jury. His Honor assumed, that there had been no demand by the plaintiff on his father for payment of the money received by the latter, or for a return of the evidences of debt; and, therefore, that the father bore towards the plaintiff the relation of receiver or bailiff up to his death. For that reason he held, that the statute of limitation did not bar the action; and, if the assumption of fact be well founded, we concur in the position of law. For it was the duty of the agent, not only to receive the money for his principal, but also to hold it for him until demanded ; and therefore there could be no action against him until demand. Now, it seems to us, that for precisely the same reasons no presumption of payment could arise ; that is, upon the supposition made, that there had been no demand before 184!, and that the relation of principal and agent continued to the death of the father. For the act of 1826 only follows the phraseology of the acts of limitation, and of the rule of the common law, that the time, on which the presumption is founded, is computed after the right of action accrued_ When, therefore, the jury was told, that a long delay of a principal to call oil his agent raised a presumption of payment, and that ten years would, in this case, be long enough *666for that purpose3 in analogy to the time fixed by the statute, Gonce'ive> that His Honor confounded two things, that are entirely distinct in themselves : the presumption raised by the ¡av^ ag a p0SpjTC ruie¡ fr0m the mere lapse of a certain time, and the presumption of actual payment deduced by the jury from lapse of time, as a circumstance, with or without others, from which they conclude, that satisfaction had in fact been made. There is, indeed, no occasion for thé act creating a presumption of payment of a simple contract ; since the ordinary act of limitations bars in a shorter time. Nevertheless, the act of 1826 is in terms sufficient to embrace simple contracts, as well as specialities — being “all judgments, contracts, and agreements and, perhaps, it may have been so drawn for the benefit of those, who would not be willing to plead the statute of limitations, but would rely on the legal presumption against a stale demand. But, although this be within the act in respect of the nature of the contract, yet it is not within it in respect to the state of things, on which the presumption is founded; for the debtor here, it is assumed, had no cause of action until 1841, and, therefore, there could be no presumption against him in analogy to that of the statute. State Bank v. Locke, 4 Dev. 529. With respect to the presumption of actual payment, found by the jury as a fact really existing, the law lays down no rule, and can lay down none, as to any particular period of time, so as to enable the Court to advise the jury that ten years, by itself, was sufficient. For it is but a circumstance addressed to the understandings of the jury, from which, according to its length and from the relation of the parties, their residences, opportunities of intercourse, correspondence, and respective pecuniary necessities, or ease, and numberless other incidents, the jury may presume a demand and payment also, or a release. It does not appear that in the present case any such circumstances were laid before the jury, or that the lapse of time was submitted to the jury, merely as evidence to be weighed by them. If it had been, we should have seen no reason for saying his Honor erred m thus leaving it to them ; as the demand seems to be *667brought forward very singularly, after seventeen years delay and just after the father’s death. Indeed, it seems to us, that' a demand might very properly have been found by the jury upon the face of the testator’s receipt itself. There is a credit given on it by the plaintiff nearly three years after its date; and when, according to the plaintiff’s evidence, the father had collected much of the money and ought to have collected all. Under those circumstances the receiving a payment fairly implies an application for a settlement; and if the jury had so inferred, then the demand, requisite to set the statute of limitations in motion, and the presumption ofpayment, would be established. However, as the case was put to the jury upon the mere legal operation of ten years delay, without a de-' mand, and in that we think there was error, the judgment must be reversed and a venire de novo awarded.

Per Curiam, Judgment reversed and a venire de novo awarded.