
6 U.S. 180 (1804)
2 Cranch 180
DUNLOP
v.
BALL.
Supreme Court of United States.
February 28, 1804.
*181 E.J. LEE, for plaintiffs in error.
*183 MARSHALL, Ch. J.
There can be no doubt of this fact. The only difficulty is to shew that it requires 20 years after the removal of the impediments, to create the presumption of payment. It may be a doubt, whether the same time after the removal of the impediments, is necessary to raise the presumption, as if the bond had borne date at the time of such removal.
Swann, for defendant, contended that the time between the 19th of April, 1775, and Sept. 1783, being deducted from the age of the bond when put in suit, the residue being about 20 years, and 6 months, should be considered as the lapse of time which was to induce the presumption that the disability of the plaintiff ceased on the ratification of the treaty of peace. There are no cases decided in the superior courts of Virginia, in which the plea of disability of the plaintiff, as being a British subject, has been allowed since the peace. The cases cited are county court cases, and do not appear in the record. They are facts which this court cannot notice.
But if we travel out of the record, other cases may be cited from other counties, in which contrary decisions have taken place. It is a fact that in Fairfax county, where the defendant always resided, British debts could always be recovered since the year 1783. If the cases cited against us are admitted to rebut the presumption, this fact is equally strong, and ought to be admitted to support it.
Lee in reply. Although it was stipulated by the treaty *184 that all legal impediments to the recovery of debts should be removed, yet that did not alter the existing state of things. The obnoxious, laws remained in full force in practice. The fact was, that the legal impediments were not removed. We are not now to consider what the law ought to have been, but what it was in practice. For if the impossibility of recovering the debt still remained, it destroyed all presumption arising from the lapse of time.
MARSHALL, Ch. J. 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 *185 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 do 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 further adjudge, 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.
