#### W. D. PEARSALL et al. EX’RS. vs. GEORGE E. HOUSTON AND JESSE BUTTS.

A presumption of payment arising from length of time in favor of one of several obligors, is a payment as to all.

A declaration of the principal obligor that he had paid the debt to ome of his sureties, does not rebut the presumption that it was paid by the surety.

Appead from the last Superior Court of Duplin, tried before his Honor, Judge Saunders.

This was an action of debt commenced by a warrant before a justice of the peace, and brought to this Court by successive appeals. The plaintiffs declared on a promissory note executed by the defendant Houston, Jesse Butts and William R. Rhodes to the plaintiff’s intestate, which became due in January, 1840. In November, 1843, a warrant was returned before a justice of the peace for the debt in question, when Houston admitted the note to be just, and judgment was *347waived upon the defendant’s promise to arrange it. After the lapse of ten years, tifie defendant was again warranted, when he said he would not pay the debt twice. The plaintiff asked him if he said he had paid the debt to them ; to which he replied, no, but he had paid it to Jesse Butts, one of the sureties. It appeared that Butts had the means, of paying the debt up to 1845 or 1846. The other surety was good up to the year 1842, when ho died.

The defendants relied upon the presumption of payment arising from the length of time.

The Court charged the jury, that to repel the presumption of payment which the law raised from the length of time, it was necessary to show an acknowledgment, partial payment, or that the defendant had not the means of payment; an assertion that he had paid the debt at some time not specified, not to the plaintiffs, but to one of his sureties, was not sufficient; that if the jury believed Butts had the ability to pay, the presumption was not repelled, and the defendants were entitled to their verdict. Plaintiffs excepted.

Verdict for the defendants. Judgment and appeal by plaintiffs.

TF. A. Wright, for plaintiffs.

No counsel appeared for defendants in this Court.

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. *348It 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.