February 1, 1804
DUNLOP & CO.
ERROR to the circuit court of the county of Alexandria. The plaintiffs in error instituted a suit in 1802, in the circuit court, upon a bond executed in 1773, by the defendant, a citizen of Virginia, to them, they being British merchants residing in Great Britain. The bond was given for a debt created in Virginia at the time of its date. It was admitted that the plaintiffs had an agent authorized to collect their debts, so far as the plaintiffs could authorize the same to be collected, during the whole time, from the date of the bond to the time of the suit, which agent resided in the county in which the defendant lived. Open war existed between Great Britain and Virginia from the 19th of April 1775 until September 1783. William Wilson, the agent of the plaintiffs, delivered over the bond to William Hunter, Jun. in 1776, to be collected, at which time he (William Wilson) went to Europe. And when he returned in 1784 he received back the bond from William Hunter. Some time after the year 1789, he delivered the said bond to James Johnson for collection, who returned it, and neither of those persons stated that the money, or any part was collected: that Johnson died in 1797. In December 1774, the expiration of the fee bill caused the courts of justice of Virginia to be shut against all persons, and the impediment continued until the commencement of the war, on the 19th of April 1775. Until the act of 1793, from the obstacles interposed by juries, and the proceedings of some of the courts of Virginia, a general opinion prevailed among the inhabitants of the state of Virginia, and among juries, that a British debt could not be recovered. The facts of the case were presented by a bill of exceptions to the charge of the circuit court to the jury on the trial of the cause; when the counsel for the defendant prayed the court to instruct the jury, that from the length of time they ought to presume payment of the bond. Upon which the court instructed the jury, that from the length of time stated in the facts agreed on, the bond, in law, is presumed satisfied; unless they should find from the evidence, that interest was paid on the bond within twenty years from the 5th of September 1775, (the time of the last payment;) or that a suit or demand was made on the said bond within twenty years from the last mentioned time, exclusive (in both cases) of five years, five months and twenty days, taken out of the act of limitations. To which opinion the plaintiffs excepted, and prosecuted this writ of error. In October 1777, the assembly of Virginia passed an act sequestering British property, and suspending executions until further order of the legislature, in all cases where a British subject was plaintiff, and a citizen of the commonwealth defendant. In November 1781, a law was passed suspending executions in certain cases; in May and October 1782, acts of a similar character were enacted; and on the 5th of December 1783, an act was passed to revive and continue in force the several acts of assembly for suspending the issuing of executions in certain judgments until December 1783, which act expired in July 1784. [Argument of Counsel from pages 183-184 intentionally omitted]
The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the court.
The only circumstance which could create a question in this case is, that twenty years had not elapsed, exclusive of the period during which the plaintiffs were under a legal disability to recover, before the action was brought.
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. But it is not so clear that upon a bond so old as this, the same length of time after the removal of the disability, is necessary to raise the presumption, as would be required if the bond had borne date at the time of such removal.
It appears from the decisions of the courts of Virginia, from the pleas in bar in the federal courts, and particularly from the observations of the chancellor of Virginia in the case cited, that it was the general understanding of the inhabitants of that state, that British debts could not be recovered; and, until the year 1793, there was no decision of the superior courts that such debts were recoverable.
The only question is whether, in case of an old debt, the same time is required to raise the presumption, as in the case of a debt accruing since the impediments have been removed.
In such a case it is not easy to establish a new rule, and the court think it best to adhere to the old decisions, that twenty years must have elapsed exclusive of the period of the plaintiff's disability; and are of opinion that the circuit court erred in directing the jury that payment ought to be presumed.
The judgment of the court is entered upon the minutes in the following terms:
The court having heard the arguments of counsel, and maturely considered the same, is of opinion (and doth adjudge, order, and decree accordingly) that the circuit court erred in instructing the jury 'that from the length of time they were to presume the bond, in the record mentioned, to be satisfied, unless they should find, from the evidence, that interest was paid on the bond within twenty years from the 5th of September 1775 (the time of the last payment), or that a suit or demand was made on said bond within twenty years from the last mentioned time, exclusive, in both cases, of five years, five months and twenty days, taken out of the act of limitations;' there being circumstances in this case which oppose the presumption which would have arisen from the length of time which has elapsed since the date of the bond.
And this court doth furtheradjudge, order, and decree, that this cause be remanded to the said circuit court, to be there tried, with directions that there is no presumption of payment of the said bond, as directed by the said circuit court.
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