Crist v. Garner , 2 Pen. & W. 251 ( 1830 )

The opinion of the Court was delivered by

GibsoN, C. J.

The account which is the subject of cross de mand, was . presented to the plaintiffs in 1815, who desired it to be postponed till the next bond should become due, in 1S16, and ■to be proven in the mean time. This would, at the utmost, suspend the statute, if at all, only for a year; which would still leave too great an interval. In 1817 it was again presented, but to the plaintiff’s agent, who, having no authority to allow it, barely promised to submit it to the plaintiffs. He made no promise which they were bound to disavow, and his act is therefore without consequences, Lastly in 1823, when an action on one of the bonds was ordered for trial, under circumstances that put the defendants at the plaintiffs’ mercy, Mr. Parker, their attorney, replied to a suggestion of set-off from the other side, that there ■would be an opportunity to set it off against the succeeding bond. As to this, it seems to me, the Court put the point on the true ground. Nothing like trick or imposition is pretended ; and granting that Mr. Parker’s clients would have been bound by his agreement if made on .sufficient .consideration, yet his suggestion neitherbenefitted them, nor prejudiced .the defendants who have not been induced by it, to forego any advantage of which they might have availed themselves. A promise to pay a debt barred by the statute, is sufficient to revive it, because it rests on a moral obligation'; but the debtor’s attorney has no authority to bind himself by such a promise, because it is not within the scope of his business. Beside, there was no promise but to afford an opportunity to give the benefit of the set-off for whatever it should 'be worth-: certainly not to waive the bar of the statute which was then complete.

The remaining point is quite as simple. By the terms of the original contract, the defendants were to pay a sum in hand, for part of which they subsequently .gave a bond and warrant, which has been entered up and the money collected. How the difference was paid, does not appear; and as the set-off was .then .an existing demand, the jury were directed that a legal presumption arose of its having been settled 'in that transaction. The defendants object that it ought to have been left to the jury as mere presumptive evidence of the fact. But was it not so left? Mr.. Starkie, who has treated the subject of presumptions .in a masterly manner, (part iv. 1235,) divides them into legal, -or such as derive from the law, an artificial effeet, beyond their ordinary tendency to produce belief; and NATURAL, or sueh as act only by their proper efficacy, The Court here put the presumption to the jury, ás of the first class. But legal presumptions are again divided into such as are immediate, or conclusions which the law itself makes without the aid of a jury ; and mediate, or such as the law makes, but through the medium of a jury. Of the last kind is the presumption of payment from the lapse of twenty years, which is only evidence of the faet, but evidence from which, when not rebutted, the jury is bound to draw a conclusion which cannot be drawn from it by the Court, when presented as a circumstance specially found, or pleaded. Starkie, p. iv. 1240. All presumptions which are attended with peculiar consequences, are of this sort, and the instances of them given in all the books, approach pretty near to the case at bar. Such is the presumption in the ease of |ent, from a receipt for rent subsequently due. The presumption of payment may arise, also, from the particular habit and course of dealing between the parties; and it ought equally to arise from the habitual course of transactions among all men, fm .which it is extremely .unusual for creditors to pay money ,tp their debtors. The presumption, here, was therefore not merely a natural one: it was attended with the peculiar consequence oif easting the burden of proof on the other- side, and was in th& words of the Court, a legal presumption.

Judgment affirmed.