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The cause came to be tried before the Lord Chief Justice Raymond, at the sittings after Easter term 1726; and the counsel for the plaintiff in error, instead of giving evidence to support his plea, that the money was paid, insisted upon the presumption in law, that the bond was dated the 24th day of June, 9 Will. III. and that 28 years were lapsed from the date of the bond, to the exhibiting the bill; and therefore, by law, the bond ought to be presumed to be paid, unless the defendant in error could shew, that interest had been paid, or a demand made within 20 years, or some other matter, to take off and invalidate this presumption.

The counsel for the defendant in error thereupon, in support of the issue on her part, gave in evidence, that the obligor died in the month of April 1710, and also the bond under the seal of the said John Wildman, and likewise offered in evidence two indorsements upon the bond, in the proper handwriting of the said George Searle, and in the words and figures following; viz.

Received of John Wildman Esq. in full of all interest due on the bond within mentioned, to the 25th day of December next ensuing this date. Witness my hand this 7th day of December 1699, George Searle. March the 25th, 1707, received in full of all interest due on this bond to the 25th of this instant, George Searle.

But it not ap-[594]-pearing when those indorsements were made, otherwise than by the indorsements themselves, the counsel for the plaintiff in error opposed the giving them in evidence to the jury; but after this point was very fully debated by the counsel on both sides, the Lord Chief Justice was of opinion, that these indorsements were evidence to be left to the consideration of the jury, and therefore allowed them to be read; and other circumstantial evidence being given, to induce the jury to believe the bond was not satisfied, there was a verdict for the plaintiff.

Whereupon the counsel for the plaintiff in error offered a bill of exceptions, whereby they insisted, that the indorsements ought not to be read in evidence; which being sealed and allowed by the Chief Justice, the plaintiff in error brought a writ of error in the Exchequer Chamber, and in Michaelmas and Hilary terms 1728, the errors being twice solemnly argued before the judges of the Common Pleas, and the barons of the Exchequer, the judgment of the court of King's Bench was affirmed by the opinion of all the Judges and barons then present, except one.

To reverse this judgment of affirmance, and also the judgment of the court of King's Bench, a writ of error was brought in parliament; and on behalf of the plaintiff it was insisted (P. Yorke, T. Reeve), that the only evidence given by the plaintiff in the action, to take off the presumption arising from the great length of time, that this bond was satisfied, was the two indorsements made thereon by Mr. Searle, who was the obligee in the bond, and who could be no witness for himself, or any person claiming under him, and had the bond always in his own custody.

On the other side it was contended (T. Lutwyche, N. Fazakerley), that the plea in this case was not a plea of payment, at the day mentioned in the condition, but of payment of principal and interest before the action brought, viz. on the 10th of February 1709, which was but 16 years before the action brought; and being under 20 years, was a shorter time than ought to be allowed as a presumption of payment. But admitting that the plaintiff in error was entitled to the benefit of this presumption upon his said plea, yet the evidence offered and given on the part of the defendant in error, was very proper evidence to take off the presumption; for the making such indorsements of the receipt of interest upon bonds, written with the obligee's own hand, is the common and usual method upon the payment of interest, it being most for the obligor's benefit to have the discharge for the interest appear upon the security itself; and in most cases, it is the only evidence that the obligee can have of the payment of interest. That as such payments are frequently and generally made between the obligor and obligee, when no other persons are present; it might be of dangerous consequence to the obligees in old bonds, if such indorsements are not to be admitted as evidence to take off the presumption. And as it would be [595] dangerous totally to reject this evidence, so likewise if the indorsements were admitted to be read, the jury, who are the proper judges of fraud, and of the truth of facts, would have it under their consideration what credit to give them, and to determine whether they were falsely and fraudulently made or not. That if these indorsements were made upon the bond at the respective times they appear to bear date, their being written with the obligee's own hand, was no objection to their being read in evidence; because it was impossible that he could have any bias upon him, or be in any manner influenced to make them, for