The opinion of the court was delivered, May 20th 1868, by
Sharswood, J.
More than thirty years ago a judgment was obtained against the defendant below at the suit of the plaintiff. In a scire facias to revive this judgment on a trial before arbitrators the plaintiff called the defendant as a witness, who said: “ I did not pay the judgment in money; I consider it paid by the lapse of time.” The defendant being now dead, the parties have agreed on this case stated, in which, after reciting these facts, the question submitted to the court is, “ whether the above evidence of the defendant on oath, in the trial of the cause before arbitrators, is sufficient to overcome the legal presumption of payment of debts of record that arises from the lapse of twenty years.”
*463A case stated is a substitute for and in the nature of a special verdict, and is subject to the same rules. It is well settled that a special verdict must find facts and not the evidence from which facts may be inferred. If the finding in this respect be defective a venire facias de novo will be awarded: Clark v. Halberstadt, 1 Miles 26, and the authorities there cited. So in a case agreed, the duty of stating the facts only and not the evidence of facts, and of submitting to the court only the questions of law, is the same here as in the English practice — Ad questiones facti non respondent judices: Holmes v. Wallace, 10 Wright 266; Diehl v. Ihrie, 3 Whart. 149. In the last cited authorities, where various circumstances were alleged as sufficient to repel the presumption of payment arising from the lapse of time — and the court below gave judgment for the plaintiff on the case stated— this court reversed the judgment, and remitted the cause for furthertproceedings. Here we have only the evidence of declarations of the decedent under oath — not an estoppel — not conclusive on his representatives, from which the jury must determine under instructions from the court as to the rule of law upon the issue of fact of payment which may be presented by the pleadings.
Judgment reversed, case stated dismissed and procedendo awarded.