84 Pa. 415 | Pa. | 1877
Mr. Justice Paxson delivered the opinion of the court,
The only question in this case is whether the court below was right in denying to the defendants the presumption of payment from lapse of time. There would have been no difficulty in the case but for Beale’s own testimony. Judgment having been entered against him in his lifetime by default, he moved the court to open the judgment and was sworn. He said he paid the money on this recognizance in 1840, to Joseph. Boggs, the then clerk of the Orphans’ Court of Juniata county, in which court the recognizance was taken. This was not payment to Kirk, the guardian, and the court below held that as there was neither proof nor presumption that the money had reached his hands, the presumption of payment was rebutted. That might have been so had there been nothing else in the case. But there were other matters which have a material bearing upon this question. This recognizance was entered into nearly forty years ago. No suit was brought upon it or demand made until 1874, and after the death of William W. Kirk, the guardian. During all that time Joshua Beale, the recognizor, for aught that appears, was solvent. Had he been insolvent, it would have been a strong circumstance to rebut the presumption, and such fact would doubtless have been proved. Then is there no presumption that Boggs paid the money over to Kirk ? It certainly was his duty to pay it. Common honesty required it.
The judgment is reversed, and a venire de novo awarded.