ion that he had the right to tile-drain the ponds, and carry off the water in the natural channel, although the flow of water would thereby be increased. This view of the subject we believe to be reasonable, and well sustained by authority. Martin v. Riddle, 26 Penn. St. 415; Kauffman v. Griese bent v. Ramsbotham, 11 Exch. 602; Rawstron v. Tay- in the channel which carried the surface water from his land to that owned by Herrington? It may be regarded as a well-settled principle of law that where two farms adjoin, and one lies lower than the other, the lower farm will be subject to the natural flow of water from the one which lies in a more elevated position, or as declared by Wash-mer, id. 407; Miller v. Loubach, 47 id. 154; Broadburn on Easements and Servitudes, page 353: 'It may be stated as a general principle that by the civil law, where the situation of two adjoining fields is such that the water falling, or collected by melting snow and the like, upon one, naturally descends upon the other, it must be suffered by the lower one to be discharged upon his land, if desired by the owner of the upper field.' The owner of the upper field in such a case has a natural easement, as it is called, to have the water that falls upon his own land flow off the same upon the field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements. Id. 355. It may also be regarded as a well settled rule that the owner of the upper field cannot construct drains or ditches so as to create new channels for water in the lower field, but he may make such drains for agricultural purposes on his own land as may be required by good husbandry, although by so doing the flow of water may be increased in a regular, well-defined channel, which carries the water from the upper to the lower field. But it is said that the owner of the dominant heritage cannot drain natural ponds of water from his own land upon the land of his neighbor below him. The ponds which Peck proposed to drain were merely the collection of surface water from rain and melting snow which fell upon the land. Suppose Peck, instead of tile-draining the ponds, had filled them up with dirt. This would have caused the water which before accumulated in the ponds to flow down the channel, indicated on the map by the red line, upon the land of Herrington. It will not be pretended that in such a case he would have violated any rule of law. As was said in Goodale V. Tuttle, 29 N. Y. 459: 'In respect to the drainage of surface water there is no principle which will prevent the owner of land from filling up the wet and marshy places to his own advantage, because his neighbor's land is so situated as to be incommoded by it. If it be true that the water which would naturally accumulate in these ponds could be cast upon Herrington's land by filling them up, upon what principle can the owner of the dominant heritage be denied the right to do the same thing in another way? If the water which would naturally accumulate in those ponds can be turned upon Herrington's land by filling them up, we perceive no reason why the water may not be drawn off by tile-draining, if good husbandry required it. These were small ponds, the largest one containing only three acres. Good husbandry did not, in our judgment, require Peck to keep this collection of water standing on his farm, and gradually seeping into his other land, and thus making it unfit for cultivation; but on the other hand, we are of opin THE PRESUMPTION OF PAYMENT.-II. RULE III. A statute of limitations prohibits the action after the legal period; but the presumption of law arising from lapse of time may be rebutted. (1) (a) And the term fixed by the statute of limitations cannot be shortened by lapse of time alone.(b) After twenty years the presumption of payment arises unless there are circumstances to account for the delay; and if there are no such circumstances, it becomes a presumption of law, and the question should not be submitted to the jury. "If there had been any circumstances, any thing but the lapse of time, to charge the jury on, that should have been left to the jury; but where there was none the presumption of law on the fact is that the judgment was satisfied. The court did no more, and if they had done less they would have committed an error. On the twenty years unexplained there was nothing to leave to the jury; they had no belief to exercise on it; it is because there are no means of belief or disbelief the presumption of fact arises; the presumption holds the place of particular and undivided belief. It prevails because the presumption of law is that the obligor in that long time has lost his receipts and vouchers, or the witnesses who could prove the payment might be dead. The jury might not have believed; this court might not believe the fact of payment; but that specific belief is not necessary. For wise purposes the law has raised the general presumption. The laying down any other rule would be destroying all legal presumptions. The position of the court below is justified by the opinions of all the judges in England in Grantwicke v. Sampson, 2 (1) Lyon v. Gudd, 5 Heisk. 175 (1871); Thorpe v. Corwin, 20 N. J. (L.) 311 (1844). Atk. 154, that 'the judges have bound it down as an irrevocable rule that if there be no demand for money due on a bond for twenty years they will direct a jury to find it satisfied from the presumption arising from length of time.' "(2) ILLUSTRATIONS. (A.) A. in 1836 gives B. a bond payable in 1838. In 1860 B. brings suit on the bond. The presumption is that it is paid. But it appears that in 1841 A. stated to B. that he did not intend ever to pay the bond, as B. had taken so much from their father. This rebuts the presumption. A statute provides that no action shall be brought on a specialty debt after twenty years unless the debtor during or after that time has made a new promise to pay the debt. The action against A. cannot be maintained notwithstanding his acknowledgment.(3) In case 1 it was said: "That presumption which the law raises after a lapse of twenty years that a bond or specialty has been paid is in its nature essentially dif ferent from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action, the former prima facie obliterates the debt. The bar is removed by nothing less than a new promise to pay or an acknowledgment consistent with such a promise. The presumption is rebutted, or to speak more accurately, does not arise where there is affirmative proof beyond that furnished by the specialty itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor. The statutory bar is not removed without a new promise or its equivalent, because suit on the old contract is prohibited, and the debtor can only be liable therefore on the contract expressly made by the new promise or implied from an acknowledgment of continued indebtedness, the old debt being the consideration for the new engagement. This is the logic of the matter though it is true the pleadings have not been moulded accordingly. We still declare on the old debt, and give the new promise in evidence; but notwithstanding this incongruity the liability which the law enforces arises out of the new contract. *** The statute of limitations is a bar whether the debt is paid or not. Not so where suit is brought on a sealed instrument. The fact of indebtedness is then in controversy, aud the legal presumption of payment from lapse of time is nothing more than a transfer of the onus of proof from the debtor to the creditor. Within twenty years the law presumes that the debt has remained unpaid, and throws the burden of proving payment upon the debtor. After twenty years the creditor is bound to show by something else besides his bond that the debt has not been paid, because the presumption raises only a prima facie case against him. It must be borne in mind that the presumption from lapse of time is not that there is no contract existing between the parties. If it were, proof of a new contract might be necessary. It is only an inference that the debtor has done something to discharge the debt, to wit, that he has made payment. Hence it is rebutted by simple proof that payment has not been made, and the facts being established, whether they are sufficient to rebut it is a question for the court and not for the jury. The presumption is one drawn by the law itself from a given state of facts, and whether it exists or not is necessarily for the court." * The character of the creditor for strictness and closeness in the collection of his debts is relevant on the (2) Cope v. Humphreys, 14 S. & R. 21 (1825); Webb v. Dean, 21 Penn. St. 31 (1853). (3) Reed v. Reed, 46 Penn. St. 239 (1863). presumption of payment by lapse of time. (4) For a like reason in the Pennsylvania case it is said: "While on the one hand the party seeking to recover a demand may introduce any circumstance, however slight, having a tendency in the least degree to defeat the presumption (of payment), so he who relies on it may strengthen and support it by any fact which legally and naturally has that effect. In the present case the heirs of a man are seeking indirectly to recover a claim due more than thirty years before suit brought. To show that this man in his life-time and during the progress of these thirty years was in needy circumstances and pressed by his creditors in various suits for large sums of money which ended in the recovery of judgments and executions against him, was but calling in aid of the legal presumption, the strong natural inference that one so harassed by his creditors and apparently in want of money for the payment of his debts, would not have permitted his debtor to a large amount to escape for so long a time a demand of payment by suit. * But it is said the records of these judgments should not have been received, because it appeared all of them had been satisfied. But though this circumstance may have weakened the effect their introduction was intended to produce, it certainly did not altogether destroy it."(5) * * * (B.) 1. A mortgage given by A. to B. fell due in July, 1819. Proceedings to foreclose it were commenced in June, 1839. In a subsequent action to recover possession defendant asked that it should be submitted to the jury whether from lapse of time payment should not be presumed to have been made before its foreclosure. A statute of the State provided that "after the expiration of twenty years from the time the right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment." Held, that no presumption could arise from mere lapse of time short of twenty years. (6) "We take it," said the court in Grafton Bank v. Doe (7), "to be well settled that courts are never at liberty to presume payment from mere lapse of time in any period less than that which is fixed by the statute of limitations. To hold otherwise would virtually be a repeal of the statute. No doubt lapse of time, connected with other circumstances, and evidence tending to prove payment, may legitimately aid in establish ing the fact." But if besides the lapse of time there are other circumstances showing that payment has been made the jury may presume payment.(8) RULE IV. The presumption of payment may be rebutted under rule 3 by showing (at any time during the period which creates the presumption) an acknowledg ment of the debt by the debtor(a); or a payment of part of it(b), or a known or notorious insolvency(c) or incapacity(d) of the debtor; or by evidence of the relation(e), situation(f) or intention(g) of the parties; or by other circumstances explanatory of the delay(h). In Hillary v. Waller(9) the chancellor said: "Then as to a presumption of title. First as to a bond taken, and no interest paid for twenty years; nay, within twenty years, as Lord Mansfield has said; but upon twenty years the presumption is that it has been paid, and the presumption will hold unless it can be re(4) Leiper v. Erwin, 5 Yerg. 7 (1833); Kilpatrick v. Brashaer, 10 Heisk. 372 (1873). (5) Levers v. Van Buskirk, 4 Penn. St. 314 (1846). (8) Milledge v. Gardner, 33 Ga. 397 (1863); Mayor of Kingston v. Horner, 1 Cowp. 102. (9) 12 Ves. 267 (1806). pelled; unless insolvency or a state approaching it can be shown, or that the party was a near relation, or the absence of the party having the right to the money, or something which repels the presumption that a man is always ready to enjoy what is his own." ILLUSTRATIONS. (A.) 1. A. gave B. a bond for the payment of $300 in 1817. An action was brought on it in 1845. The presumption that it was paid is rebutted by proof that in 1837 A., in the presence of a witness, acknowledged that it was still due. (10) 2. C. brought suit against D. ou a bond payable over twenty years before action. D. during this time, and within twenty years, admitted that it was due, but said he had a defense to it. There is no presumption that it was paid. (11) 3. F. sued G. on a bond more than twenty years after it was due. But during this time G. had twice stated that he would not pay it, as F. had obtained more he from their father. This rebuts the presumption of payment.(12) 4. C. gave a mortgage on his land to H. in 1854. In 1874 H. died, leaving the mortgage to his daughter M. In 1879 M. asked H. for an acknowledgment that the mortgage, on which nothing had ever been paid, was a valid security, to which H. agreed, making a memorandum to this effect on the mortgage. M. subsequently assigned the mortgage to E., who sent it to H. to get an admission of the genuineness of his signature. H. kept the mortgage, and afterward stated that it was lost. These facts rebutted the presumption of payment. (13) In case 1 it was said: "The legal presumption of payment which the law allows at the expiration of twenty years after the debt becomes due is an act of tenderness toward the debtor which is sustained by the absence of evidence, and like other presumptions, must yield and give way before any circumstances and facts on which the mind can rest with satisfaction by which it is rebutted or repelled. It has not the power or effect of a positive statutory enactment of limitation or oblivion which extinguishes the original demand, and requires a new promise to pay or its equivalent. The mind must be free to admit the presumption, and if the exhibition of facts or circumstances interdict and forbid the conclusions, the protection is removed. *** There could be no doubt whatever that an acknowledgment of the debt before the efflux of twenty years excluded the legal presumption of payment. The question raised and argued was as to the competency of an acknowledgment after the expiration of twenty years from the time the bond became due. The court did not err in their instruction to the jury. The burden of proof lies on the plaintiff; and if he satisfies the jury by proper evidence that the defendant, after the expiration of twenty years, admitted the existence of the debt, it would be converting legal presumption into credulity to instruct a jury that they were authorized to presume payment against positive evidence. The legal presumption of payment would be changed into a legal and peremptory bar, contrary to all authority." In case 2 it was said: "The suit was not brought within twenty years from the date of the bond and the (10) Eby v. Eby, 5 Penn. St. 435 (1846); Bissell v. Jandon, 16 Ohio St. 498 (1866). And a demand proved to have been made on the debtor by the creditor rebuts the presumption. Shelds v. Pringle, 2 Bibb, 387 (1811); Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.) 685. (11) Stout v. Levan, 3 Penn. St. 236 (1846). (12) Reed v. Reed, 46 Penn. St. 239 (1863). (13) Murphy v. Coates, 33 N. J. (Eq.) 424 (1881). debt payable. Twenty years' delay unaccounted for pays the debt. ** * * This payment is by operation of law. After that time, if not accounted for, the debt is presumed to be paid. This presumption as a bar is conclusive of its payment unless it is rebutted by countervailing proof. This presumption may be overcome by proofs of various kinds of facts and circumstances. Payment of money in part discharge of the present existing debt; an acknowledgment that the debt is still unpaid and due will rebut this presumption of payment. It is not reasonable to presume a debt paid which the debtor says was not paid." "It would be absurd," said the court in case 3, "for the law to presume in the case of such admission that it had been paid. All presumptions are in accordance with what is usual, not against it. True the defendant added to his admissions the expression of a purpose not to pay, giving as a reason not that he had paid, but that the plaintiff had obtained more than he had under the will of their common father. This might be important if it was necessary to show that a new obligation had been assumed, but it only strengthens, if possible, the evidence that the debt remained unpaid." But the presumption of payment," it was shown in case 4, which arises in regard to mortgages from lapse of time, without payment of interest or demand made, is only a presumption, and it is one which may be rebutted. In this case C. has acknowledged both verbally and in writing that neither principal nor interest has been paid." 66 But the fact that the debtor had during the twenty years said to a stranger that he would not pay the debt (a legacy) because the creditor was rich enough without it was held insufficient. "When a person," said the court, "in conversation with a stranger respecting the claim of another, says he will not pay it, there is not the same reason for inferring recognition that exists when the creditor requests and its debtor refuses payment. In the latter case not to deny is to admit. Besides the debt is claimed. But it does not concern the stranger whether the claim is existing or has been paid. He has no right to ask payment." Bentley's Appeal, 99 Penn. St. 500 (1882). (B.) T., H. and S. signed a bond payable in 1860. The presumption in 1881 is that it is paid. But it appears that in 1868 T. became bankrupt, and his assignee paid T.'s share of the obligation. This rebuts the presumption which had arisen in favor of H. and S.(14) (C.) 1. A judgment was entered against L. in the year 1818 for over one thousand dollars. The presumption in 1846 is that it is paid. It is shown that many judgments and executions were issued against him after that, and that from 1820 to the present time he was insolvent and unable to pay his debts. This rebuts the presumption of payment.(15) 2. While A. and B. lived in Virginia A. gave B. a bond payable in 1811. In 1812 A. removed to North Carolina to Mississippi, where he lived till he died in (14) Belo v. Spach, 85 N. C. 122 (1881); Hamlin v. Hamlin, 3 Jones (Eq.) 191. So as to the payment of interest, Shields v. Pringle, 2 Bibb, 387 (1811). But the evidence of a joint obligor of a bond that he had not paid it is not admissible to repel the presumption arising from lapse of time. Rowland v. Windley, 86 N. C. 36 (1882). (15) Farmers' Bank v. Leonard, 4 Harr. (Dec.) 537 (1848); McClellan v. Crofton, 6 Me. 334 (1830); Fladong v. Winter, 19 Ves 197 (1812); Wynne v. Waring, 1 Term. Rep. 270; Kilpatrick v Brashaer, 10 Heisk. 372 (1873); Hopkirk; v. Page, 2 Brock. 20 (1822). 1819. He was during this time in most destitute circumstances except for about eighteen months at one time, when he was in possession and appeared to be the owner of considerable property. In an action brought on the bond in 1837 the presumption of payment is rebutted by his insolvency. And the fact of insolvency is not affected by the interval of solvency of which the creditor could not have known.(16) 3. The presumption of the payment of a bond being rebutted by proof of the insolvency of the obligor during all the time, it appears that he had a reversionary interest in certain shares which did not vest in him until a short time before action brought, and of which the creditor was ignorant. This does not affect the rebuttal.(17) 4. The issuance and return of an execution nulla bona is a circumstance rebutting the presumption of the payment of a judgment from lapse of time.(18) stances of a creditor who holds a bond and had the opportunity to collect it from the debtor but makes no demand of payment, either of the principal or inter est, for a period of twenty, years afford strong presumptive evidence of payment or satisfaction. So on the other hand and for the same reason the indigent circumstances of a debtor, his hopeless insolvency and inability to pay his debts, are properly admissible in evidence for the purpose of repelling presumption of payment or satisfaction arising from lapse of time. Therefore if the jury are satisfied that the defendant was in such a state of indigence or insolvency since the year 1820, that he was unable to pay this judgment and other debts which had priority or preference, the presumption of payment is repelled and the verdict ought to be for the plaintiffs. But if the jury are satisfied from the evidence in this case that the defendant, although in indigent or embarrassed circumstances since the year 1820, had during that period either from visible property or from other resources from which payment might have been coerced by the use of legal process either against his property or his person, the means of paying this judgment and other judgments having a priority of lien upon any land or other debts, which by the use of legal diligence could have been made to have a priority over this claim; or in other words, if it appears to the satisfaction of the jury that this judgment might have been collected by the use of legal process at any time since the year 1820, the presumptive bar from lapse of time is not removed, and in such case the verdict ought to be for the defendant." The jury found for the plaintiff. In case 2 it was said: "The distinction is material as preventing the possession of property by the debtor for but a short period from counteracting the effect of insolvency, as a circumstance repelling the presumption of payment. For if the debtor, living more than a thousand miles from the creditor, and in a situation between which and the place of the creditor's residence there was but little communication, should have had in possession property of value to pay the debt but for a very short time, so that the jury should think the creditor did not know of it and could not get payment out of that property, it might be regarded as being substantially a continued insolvency; especially where, as here, the debtor seems barely to have had possession of property without its appearing how he got it and whether he had paid for it." In case 1 it was said: "It is a well established rule of law that where a debt due by specialty has not been demanded by the plaintiff or acknowledged or recognized by the defendant for twenty years, and nothing is shown to account for the delay, the debt shall be presumed to have been fully paid and satisfied. This rule applies not only to bonds, but to mortgages, judg-real property which he may have had, and also all ments, recognizances, decrees, and other debts of record. If the presumption is not repelled by sufficient legal evidence, it becomes absolute and conclusive, and the jury are bound to render a verdict for the defendant, although they may individually believe that the debt has not been paid. The rule is founded on the common experience of the conduct of men in relation to the transaction of business; and was intended for the security and repose of society, by discountenancing suits for stale demands and discouraging the laches and negligence of parties in delaying to prosecute their claims for an unreasonable length of time when they had the means and opportunity of enforcing them. The rule also was intended for the protection of the debtor whose receipts or vouchers may perhaps be lost, or witnesses be dead or removed; or the true state of the transactions be otherwise obscured by lapse of time. It is better for the peace and repose of society and the ends of justice that the presumption arising from lapse of time should be adhered to, and not be easily rebutted; although in many cases it may be contrary to the actual truth of the case. Although this rule is well established, it is equally well settled that in all cases the presumption of payment arising from lapse of time may be repelled by countervailing evidence which satisfies the minds of a jury that the debt is still due and unpaid. The evidence for this purpose must consist, 1st, of an unconditional and unqualified acknowledgment or admission, either express or implied, on the part of the defendant within twenty years of the justness of the claim, and that it is still due; or 2d, a payment on account of either the principal or interest, either of which is an implied recognition of the debt; or 3d, the situation, condition or circumstances of the parties, such as the absence of the plaintiff or the defendant in a foreign country, or the insolvency or embarrassment of the plaintiff or the defendant. There is no evidence either of the first or second description. But the plaint iffs contend that there is sufficient and competent evidence of the third description to rebut the presumption of payment in the present case. The question is presented whether the poverty or insolvency of the defendant or a state approaching or manifestly tending to insolvency is admissible in evidence. The court are of opinion that it is. The indigent circum (16) McKinder v. Littlejohn, 4 Ired. (L.) 198 (1843). In case 3 it was said: "The presumption raised by a forbearance for twenty years may be repelled by evidence that the debtor had not the means or oppor tunity of paying. * ** The circumstance relied on is not sufficient to withdraw the present case from the operation of this doctrine. * * * If it could be brought home to the creditor that he knew of this interest in remainder, an inference of negligence in forbearing for so many years from any effort to subject it to his demand might be raised against him, but as the intestate himself forbore wholly, notwithstanding his necessities, from making any use of this interest, it might be that he was ignorant thereof, and still more probable that these creditors knew not of it." In another case it was said: "The only true rule, in such a case, is to require such a state of insolvency to be shown to have existed during the entire ten) years after the maturity of the debt, as will prove that the debtor did not pay because he could not, and nothing short of this will the law permit to destroy its own inference arising from the lapse of time. Besides this, in a case like the present the presumption of payment, unlike that which is raised of the death of a party from his being continually absent and unheard of for seven years, is by law referred to a particular period 1. A. mortgaged his land to B. A. was a son-in-law of B. There is no presumption, even after twenty years with no payment or demand of interest, that this mortgage has been paid.(21) 2. B. mortgaged his land to C. After a lapse of time in which the presumption of payment would arise, the rule is different where it appears that B. had died many years before, leaving a wife and children in poor circumstances.(22) 3. A father left his son certain land having a doubtful title, with the provision that should it be recovered from him at law, B. another son, should pay him a certain sum from the estate. The land was taken from A. by legal process in 1742. In 1788, A. sued B.'s executor for the sum. The presumption was that B. had paid A. It appeared however that B. "had amused A. until his death in 1785, with promises of providing for him by his will," which he never did. The presumption of payment is rebutted. (23) In cases 1 and 2 it was said: "The very situation of the parties is of itself sufficient to rebut the presumption. The mortgagor was a near relative; he had married the daughter of the mortgagee and had issue. The mortgagor died many years age, leaving his wife and children in possession. They were not in a situation to pay either principal or interest. To have exacted the payment might have brought distress upon those who depended upon this property for a support, and would have been harsh to say the least of it. To suffer the mortgage to remain without compelling payment was a reasonable indulgence, and ought not to be set up now for the purpose of defeating the claim. One ground for a presumption of payment growing out of a lapse of time, is that a man is always ready to enjoy what is his own. Whatever will repel this, will take away the presumption of payment, and for this purpose it has been held sufficient that the party was insolvent or a near relation." In case 3, Marshall, who was then at the bar, argued as follows: "I admit that length of time which induces a presumption that a claim has been satisfied will create an equitable bar. But this presumption may be repelled by testimony accounting for the delay, and in this case there is a sufficient reason assigned and proved for the appellants not asserting his right at an earlier day. It appears that the testator of the appellee had been long married without having children; that he acknowledged his brother's lenity in not coercing satisfaction of his claim, and promised to make him an ample provision at his death." The court agreed with this view of the case saying: "The judge who pronounced the decree of reversal in this case seems to have considered no other question, but the presumption against the demand on account of its antiquity. It is undoubtedly true in general that a right for a length of time unaffected, is subject to a presumption of its having been satisfied sufficiently strong to defeat it. But it is equally true that this (19) Grant v. Burgwyn, 84 N. C. 560 (1881); Powell v. Brinkley, Busb. (N. C.) 154 (1852). (20) McLellan v. Crofton, 6 Me. 334 (1830). (21) Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.) 685 (1832). (22) Id. (23) Eustice v. Gaskins, 1 Wash (Va.) 188 (1793). 1. A bond, made by B. to A. in 1784, is sued on in 1815. The action is brought in England where A. has always lived. But from 1792 to 1815 B. has resided in America. The presumption of payment is rebutted. (24) 2. Rent of a house became due on December 25, 1794; but was not sued for till 1816. One of the parties resided in England, the other in America. The breaking out of the war between the countries and the distance between the parties, prevented the presumption of payment from arising. (25) 3. During the period the time was running, the parties lived in the south; the war was flagrant and the courts were closed. This rebuts the presumption.(26) The principle upon which the presumption of payment arises from the lapse of time is a reasonable principle and may be rebutted by any facts which destroy the reason of the rule. That no presumption could arise during a state of war, in which the plaintiff was an alien enemy, is too clear to admit of doubt." (27) (G.) 1. A bond payable on demand was executed in 1843 A suit was brought on it in 1867. The presumption was that it had been paid. It appeared that though payable on demand it was not the intention of either party that it should be paid till a future time. The presumption is rebutted. (28) 2. A surety to a note under seal against which by lapse of time a presumption of payment has arisen is asked during this time to sell his land to another. He replies that he cannot, as the creditor if he does will push him on the note, which he has promised not to do during his life-time. This rebuts the presumption of payment. (29) In case 1 it was said: "Do sufficient circumstances exist in this case to rebut the presumption of payment? I think so. The bond, it is true, was payable on demand, but the accompanying circumstances show conclusively that neither the obligors nor the obligee expected this bond to be paid promptly. It is true it was drawn payable on demand, but the accompanying circumstances show conclusively that neither the obligors nor the obligee expected this boud to be paid promptly. It is true a legal cause of action arose the day the bond was executed; but it would have been a gross breach of good faith if the obligor had sued on it promptly. * * *The bond in this case was given by the members of a mercantile firm to a brother of one of the obligors. It was given for money advanced to them to be used in their business. And the obligee borrowed it for the express purpose of letting them have the use of it in their business. Their credit was not sufficient to enable them to borrow this money, and the obligee borrowed it on his own, simply for (24) Newman v. Newman, 1 Stark. 101 (1815); Helm v. Jones, 3 Dunn, 88 (1835). (25) Bailey v. Jackson, 16 Johns 210; 8 Am. Dec. 309 (1819); Shields v. Pringle, 2 Bibb, 387 (1811). (26) Hopkirk v. Page, 2 Brock. 20 (1822); Gwyn v. Porter, 5 Heisk. 254 (1871); Jackson v. Pierce, 10 Johns. 415 (1813); Montgomery v. Bruere, 4 N. J. (L.) 266 (1818); Hale v. Pack, 10 W. Va. 145 (1877); Thomas v. Hunnicutt, 54 Ga. 337 (1875); Kilpatrick v. Brashaer, 10 Heisk. 372 (1873); Cannon v. Mathis, id. 575 (1873). (27) Marshall, C. J., in Dunlop v. Ball, 2 Cranch, 184 (1804). |