The opinion of the court was delivered by

The counsel for the plaintiff have contended, that the jury should have been instructed, positively, that the re*126ply of George Grant to Mr. Hall, was an acknowledgment of an existing debt, sufficient to destroy all presumption of payment from length of time. But I am of a different opinion. X think the charge was quite as favourable to the plaintiff as the evidence warranted. George Grant did not acknowledge an existing debt. On the contrary his words, on a candid construction, showed, that he insisted on his plea of payment, and was determined to stand a trial.

He said, that if judgment went against him, he could find property of Martin's sufficient to satisfy it. Now, surely, this was nothing like an acknowledgment that judgment ought to go against him. It is a circumstance of some weight, that George Grant was but an executor of his father, who was surety for Martin, and therefore could not be supposed to have the same knowledge of the bond’s being paid or not, as if it had been his own debt. If payment had been made, it would probably have been by Martin, the principal debtor. If the court erred at all, then, in, the charge to the jury, it seems to me that the error was, in not telling them that George Grant’s words were not sufficient to take off the presumption arising from length of time. I am of opinion that the judgment should be-affirmed.

Judgment affirmed»