Moore v. Smith , 81 Pa. 182 ( 1876 )

Mr. Justice Siiarswood

delivered the opinion of the court,

This was a scire facias which issued May 29th 1874, to revive a judgment entered September 5th 1857. More than sixteen years therefore had elapsed. A legal presumption of payment does not indeed arise short of twenty years, yet it has been often held that a less period with persuasive circumstances tending to support it may be submitted to the jury as ground for a presumption of fact. “ When less than twenty years has intervened,” says Chief Justice Gibson, “ no legal presumption arises, and the case not being within the rule is determined on all the circumstances; among which the actual lapse of time, as it is a greater or less extent, will have a greater or less operation:” Henderson v. Lewis, 9 S. & R. 384. In Ross v. McJunkin, 14 Id. 369, fourteen years was treated as having this effect. In Diamond v. Tobias, 2 Jones 312, a time short of twenty years was allowed with circumstances, Mr. Justice Coulter remarking, “ but exactly what these circumstances may be, never has.been and never will be defined by the law; there must be some circumstances, and when there are any it is safe to leave them to the jury.” In Webb v. Dean, 9 Harris 29, the period fell short of sixteen years; in Hughes v. Hughes, 4 P. F. Smith 240, of nineteen years.

The affidavit of defence in this case certainly did aver facts which were well calculated to support the presumption. There had been, it is averred, a sheriff’s sale of real estate of the defendant which was subject to the lien of the judgment sought to be revived, and from the funds derived from which, the plaintiff would have been entitled to payment. The defendant indeed goes on to aver his information and belief and expectation that he would be able to prove actual-payment from this fund ; but that he had not been able to procure a sight of the docket of the sheriff who made the sale and distributed- the money. In cases of distribution by the sheriff, it is true that the sheriff’s docket is the only written evidence, and that is his private property. By'the 78th section of the Act of April 15th 1834, Pamph. L. 551, it is provided, that “ the books of the sheriff, at the expiration of his term of office, shall be deposited in the office of the prothonotary of the Court of Common Pleas, for the inspection of all persons interested.” But by the Act of January 22d 1847, Pamph. L. 52, sheriffs of the county of Philadelphia are exempted from the operation of this provision. A reasonable time might have been allowed to the sheriff to retain his books in order to settle up his business, but surely they should then be required to be deposited in some public office. Perhaps it might be still better to require the sheriff to return with every writ of execution the disposition he had made of the money. It is, however, for the legislature to remedy this, which must be acknowledged to be an inconvenience. We are of opinion that a sufficiently good reason was given by the defendant for not being able to specify with more certainty what amount the plaintiff had received, and in connection with the lapse of time which had passed, there was enough to 'send the case to a jury.

Judgment reversed, and procedendo awarded.