#### WILLIAM WOODBURY vs. ABRAHAM TAYLOR.

Where in reply to the presumption of payment arising from Hie length of time, which was eleven years, it appeared that for seven years of that time *505the defendant was totally insolvent, Held that the presumption did not arise.

What will repel the presumption of- payment arising from the length of time, is a question of law, and it is error in a Judge to leave that question to the decision of the jury.

Where a jury decide a point of law, which was erroneously submitted to them by tho Court, correctly, it is no ground for a venire de novo.

Action of debt, tried before bis Honor, Judge Bailey, at the last Spring Term of Cherokee Superior Court.

The plaintiff declared on a judgment rendered against the defendant in the Circuit Court of Blount County, Tennessee, in the year 1812, for $-. Execution issued on this judgment, ■ and all the defendant’s property was sold under it. The last execution issued returnable to Spring Term, 1813. Tho writ in this case ivas issued on the 13th of June, 1853. The defendant resided in Tennessee when the judgment was rendered, and he continued to reside in that State until the year 1819, when he removed to Cherokee county, N. C., and has lived in that county ever since.

The defendant relied upon the presumption of payment. For the purpose of repelling the presumption, the plaintiff proved that, from 1812 up to 1819, the defendant ivas totally insolvent. The plaintiff then introduced a Mr. Ilolloway, who had been a constable in Cherokee county, who proved that he had known the defendant for about six years, that as an officer he had claims in his hands against him, and he was always able to collect them; that he thought as much as $150 might have been collected out of him at any time during the last four years.

The amount of principal and interest on the debt in question, was, when the defendant left Tennessee in 1819, $310.

The Court instructed the jury, that the judgment being obtained in 1812, and more than ten years having elapsed since the last execution thereon before this suit was brought, the law presumed the judgment was satisfied; that this presumption was not conclusive, but it was sufficient to throw the bur-then of proof upon the plaintiff to repel it; that the testimony *506was submitted to them; that if they were satisfied from this testimony, that the presumption was repelled, they would find for the plaintiff, but that if the evidence had not satisfied them upon this point, they should find that the debt was paid.

The defendant’s counsel asked the Court to instruct the jury, that upon the plaintiff’s own showing, the defendant •was in law entitled to a verdict.

The Court declined to give such instruction. The defendant excepted to the whole charge.

Yerdict for the plaintiff. Judgment and ajipeal.

Baxter, for plaintiff.

J. W. Woodfin, for defendant.

Nash, C. J.

There is no error. By the common law, when a claim, founded on a sealed instrument, remained dormant for twenty years, a presumption of payment arose, and' was so strong, that the defendant, in an action brought upon .it, could plead payment, and rely upon the lapse of time as proof of the fact. Our act has cut down, the time which raises this protection against stale demands, fitom- twenty to ten years. This lapse of time, however, is but presumptive evidence of payment of the demand, leaving to the plaintiff the-right of showing, if he can, that the presumption is met by a-counter presumption-, that the- debt has never been paid-. Of these latter, the fact of the insolvency of the debtor for ten years next preceding the bringing of the action, or from the last judgment, is one, for in that case- a countervailing presumption is raised that the debt has never been- pa-idi In the-case before us, the plaintiff’s judgment was obtained in 1842, upon, which all the property of th,e defendant was sold without satisfying the judgment, and. the last execution was returnable to the Spring Term, 1843, of the Court where the j udgment was obtained. This action- was brought in March, 1853, more than ten years after the last execution. The defendant resided in Tennessee, where the judgment was obtained, and continued so to reside, until 1849, when he remov*507ed to this State, and during all that time was insolvent, but after removing to this State, his circumstances were improved, and small sums, from time to time, were raised from him by officers.

IIis Honor instructed the jury that if, from the testimony, they were satisfied that the presumption of payment from lapse of time was repelled they would find for the plaintiff, otherwise, for the defendant. In this there is error. What was presumption of payment was a matter of law, and what would repel it, was likewise a matter of law. It is error in a Judge to submit a question of law to a jury as a matter of fact. IBs Honor ought to have instructed the jury that the time which elapsed after the second execution, while the defendant remained in Tennessee, and entirely insolvent, being but about six years, did not support the defendant’s plea ; and that the time he resided in this State, being- not more than four years, during which it was shown he was able ble to pay the plaintiff’s debt, did not bring the case within the act of presumptions; in other words, though fen years had elapsed after the last execution, before the bringing of the action, the presumption of payment was repelled by the fact, that from 1843 to 1849 the defendant was wholly insolvant, and that after his removal, not more than four years had elapsed before the action was brought.

The error committed by the Court was, however, corrected by the jury, who returned a verdict for the plaintiff.

In my opinion the judgment should be affirmed.

Pearson, J, When a creditor lets his debt stand for ten years, during all which time nothing is said or done in regard to it, from public policy, the law raises a presumption that it has been paid, and gives to the lapse of time an artificial and technical weight, beyond that which it would naturally have as a mere circumstance bearing upon the question of payment. But it is well settled that this presumption may be repelled ; and it is a question of law for the Court what circumstances, if true, are sufficient to repel it. There can be no doubt that proof that the debtor was, during all the time, unable to pay the *508debt, or any part thereof, is sufficient, if true, to repel the presumption, because it amounts to a demonstration that it has not been paid. So, I take it, there can be no doubt that proof that the debtor, from the year 1842, when he was sold out, up to the year 1849, was unable to pay the debt, or any part thereof, repels the presumption that it was paid during that time; and although, without explanatory evidence, the lapse of time from 1842 to 1853, when the writ issued, would have raised the presumption, yet, the first seven years of the time being disposed of, it being demonstrated that during those years there had been no payment, it follows, conclusively, that the presumption is completely repelled, inasmuch as the lapse of the last four years cannot raise it.

There is another view. The creditor having, in 1842, taken judgment, and hy means of executions, enforced the payment of all that could be made, shows himfelf vigilamt; and proof of the debtor’s inability to pay, up to the year 1849, accounts for his inactivity during that time, because any further steps would have been both useless and expensive. It is surely unreasonable to have a presumption running against him while it was out of his power to compel the debtor to pay, or renew the evidence of debt, or even to acknowledge it. Under such circumstances, the most vigilant of creditors would have forborne further proceedings. So, the presumption of payment has nothing to support it but the lapse of the last four years.

Per Curiam.

Judgment affirmed.