The opinion of the Court was delivered by

In this case, the defendant has no right to complain of the instructions of the presiding Judge upon the facts. He, the defendant, had the full benefit of the absence of the plaintiff in execution, the defendant’s insolvency, and the renewal of the executions, as rebutting circumstances against the presumption of payment arising from lapse of time.

The only ground on which he can stand is, that the Judge below instructed the jury that the presumption of payment arose from the time the judgment was entered up, and not from the time when the last execution lost its active energy.

There is no case to be found, which makes the exact point in issue in this case. Our practice of issuing executions which are suffered to run on for years without levy, and still having a lien from their lodgement, constitutes a peculiar feature in our jurisprudence, and leads, sometimes, to difficulties in applying principles derived from England, or our sister States.

Still, I think, both on reason and authority, the rule was stated correctly below. In a suit on a judgment by action of debt, or on a scire facias to revive it, the judgment is the predicate of the proceedings. The issuing and return of executions is not set out: the party simply alleges he has not had execution. This being the case, how can he appeal to the return of the last execution as the time at which his right to demand his money begap to lie dormant? It is a mere circumstance, which may or may not repel the presumption. The right of the party to be paid, is ascertained by the re*504covery of a judgment, the same as that is ascertained by the time when a bond is due.

It was at one time ruled that lapse of time, (twenty years,) operated like a rule of law, and unless the case was within its exceptions, it could not avail the party. Hutchison vs. Noland, (1 Hill, 222). But the better opinion now seems to be, that lapse of time is in place of evidence to prove a fact, and any thing which will go to remove the belief, which would otherwise arise from it, is enough to rebut it. (Best on Presump. 46 et seq.) This makes it, and the circumstances relied on to remove it, essentially matters proper for the jury; and this case might be here rested.

But it may be useful to pursue the enquiry in another aspect, and see how far authority may support the position, that the issuing of the execution cannot control the presumption.

The case of Brewton vs. Cannon, (1 Bay, 482,) is the first case which our books present. In it, the rule was laid down on the circuit, that unless a payment within the twenty years was shewn, the bond was to be presumed to be paid. The Court sent it back, on the ground, that the revolutionary war, and its consequent distresses were facts, which might rebut the presumption. In that case the course was pursued, which was pursued in this case, it was left to the jury to decide on the rebutting circumstances. If war, then, was not a legal cause to arrest the presumption, much less can the plaintiff’s execution have that effect. But it is supposed, that presumption rests on the acquiescence of both parties. I think that can hardly be said to be the case. For a plaintiff may demand payment every day in the year, for twenty years, and if the defendant does or says nothing shewing acquiescence on his part, it can have no effect. Indeed, generally, he could make no such proof.

The case of Palmer vs. Dubois, (1 Mill, 178,) is an illustration of the position, that the plaintiff’s action alone cannot rebut the presumption. There, the presumption of payment was attempted to be rebutted by shewing an intervening suit brought, and discontinued. This the Court held to have no such effect. *505That great Judge (Cheves) held that it was in aid of the presumption, instead of being against it. The letting fall of the suit is a sort of renunciation of the claim. So here, the. party by ceasing to renew his execution in 1835, eleven years before the intestate’s death, is a circumstance in aid of the presumption. It is a letting fall his remedy, like a discontinuance. A party, by keeping his execution renewed for twenty years or more, has no occasion to ask during its active energy for the aid of the Court. He can collect his debt, and there is no room for presumption. But the moment he lets fall his active remedy, and comes into Court to revive his judgment, and give him a fresh execution, then he encounters the presumption from lapse of time, and then he must satisfy the jury that the presumption ought not to attach.

In Kennedy vs. Denoon, (3 Brev. 476,) the case was a sci. fa. on a judgment: and although the time was not sufficient, yet the Court looked alone to the time of- the recovery of the judgment and not to the entry of the execution, or its return.

In general, after a year and a day at common law, and now after the extended period allowed by our Acts, had expired without an execution, the law raised the presumption that the plaintiff had released the execution, and, therefore, he was obliged to resort to his sci. fa. to give the defendant the opportunity of shewing the release, or shewing other cause, why the execution should not be issued. (2 Tidd. Pr. 1102). This being the case, at the earliest period when a revival can be demanded, it is difficult to conceive how the issuing and return of successive executions can be any benefit to the party.

The case of Mullikin vs. Duval, (7 Gill & Johns. 355,) approaches nearer to this case than any which I have seen : and for my reference to it, I am indebted to the industry of my brother Withers. In Maryland there is a statute, by which the action on a judgment is barred, if “ it is of twelve years standing.” The question ,in the case was, whether the time was to be computed from the rendition of the judgment, or the return *506of the execution ? It was held, it must begin from the time the judgment took effect, and not from the return of the execution. At page 358 et seq., Judge Stephen puts the matter in a clear and unanswerable point of view: his conclusion is, I think, exactly pertinent to the case in hand. “ Whenever, therefore,” says he, “it becomes,necessary to resort to a sci.fa. to revive the judgment, and limitations are pleaded, the time must be computed, not from the return of an execution issued thereon, but from the period when the judgment became legally efficient, and operative, so as to entitle the party to judicial process to enforce it.” This would seem to be a judgment almost on the point before us. The only distinction is, that case is under a statute, and this under a rule taken very much in analogy from it. Both alike must look to the time, when the debt is demandable: and both would be controlled' by any thing which shewed, that a right, beginning at the rendition of the judgment, would be carried forward, and take date from the return of the execution. I think the analogy is so perfect between the cases, that if I had doubted before, this would have brought my mind to the conclusion, that the presumption would begin from the judgment and not from the return of the execution.

In Boardman vs. DeForest, (5 Conn. R. 1,) the action was debt on a judgment: plea, — -full payment. The defence was, that more than twenty years had expired from the rendition of the judgment, and, therefore, payment was to be presumed.— Hosmer, C. J. ruled, “ that a debt may be presumed to have been satisfied when suffered to lie dormant for twenty years, if the forbearance is unexplained by facts which destroy the reason of the rule.” This ruling was held by the Court to be unexceptionable. The Court, I gather from reading the opinion, held, that to constitute such facts as would explain the forbearance, there must be some act, or admission on the part of the defendant, shewing the continuance of the debt. To that I fully assent. In the issuing, returning and renewing of executions, the defendant has no action. It may be done and redone for *507forty years, and unless he is astute enough to examine the clerk’s and sheriff’s offices, he will be ignorant of the facts.

It is supposed each issue of an execution is a judicial, recognition of the debt: but surely this cannot be the case. The execution is process merely, given to enforce a debt ascertained by the judgment. The Court is in no way responsible for its accuracy: it issues of course: and the plaintiff is responsible if he issues it irregularly, or without authority. It is throughout the plaintiff’s act. How that can affect the defendant, I confess, I do not perceive. The motion is dismissed.

I join in dissenting.

Process of execution is, in theory, the written memorial of a mandate given by the Court. As the entry of judgment is registration of what the Court decided, supposed to have been made at the time' of decision, although actually made during the next vacation, so a fieri facias, or other final process, shews what the Court ordered, and is supposed to have issued from the Court at the instant the order was given. Before our Act of 1827, extending the time for the renewal of final process, and other Act's altering our practice, (none of which have affected the principles applicable to final process,) a fi. fa. must have been *509tested during term — it had. except in regard to the time of its lien, relation to the first day of the term in which it was tested; it was returnable to the next term : if not executed before its return day, the sheriff then returned to the Court the reason why it had not been: an alias fi. fa. was then supposed to have been ordered and was issued during the next vacation; upon its return without complete execution, a pluries was awarded, and so on. Every renewal was thus a new order of the Court, given upon proof that the former order had been ineffectual, and contained in itself, so long as it remained unvaca-ted, evidence that the execution, which had been required to be done, remained undone — that the money required to be made, remained unpaid. The 19th sect. of the Clerk’s Act of 1839, (11 Stat. 76,) prohibiting the clerk from sealing any renewed execution before the former one has been returned, recognizes the true theory on this subject.

When the plaintiff in execution has permitted too long a time to elapse after the return of final process unexecuted, and his right to renew, as matter of course, has thereby been lost, a discontinuance of his process results, and if he would re-establish the continuance, he may resort to a sci fa. for the purpose of removing the presumptions which his delay has raised. The award of execution after sci. fa. is a decision by the Court that the judgment is yet unsatisfied. If, after this award, the plaintiff should neglect to sue out process, it would not be contended that the award did not remove all prior presumptions, so that reference must be had to the time it was made in all future contests concerning presumptions. Now, it seems to me, that the renewal of a fi. fa. before the right to renew has been lost, is just the same as the renewal by virtue of an award after sci. fa. or as such award itself. It is, without the need of sci. fa., that continuation, which, after interruption by too , great a lapse of time, sci. fa. effects. It is said that there is a difference in this that the defendant receives notice by a sci. fa. and is a party to the award made under it, but has no notice of a mere renewal. I think that in the latter case there is no need of notice; the de*510fendant was in. Court, heard the judgment, knows of the order for execution which was made, and is, in theory, privy to all that subsequently occurs in Court under the judgment before a discontinuance takes place.

But it is supposed that, although a plain tiff, who has regularly continued his process of execution, might well be saved from the effect of any rule that would, from mere lapse of time, presume his having received that satisfaction, which all along he had been in vain striving to obtain, by all the means which the law afforded to him, yet that where, after several renewals, the plaintiff has suffered his process to be discontinued, a presumption of payment runs from the day of judgment, and is rather increased by the failure to continue the renewals. A writ sued out upon a bond and not continued, had no effect in rebutting a presumption of payment, which lapse of time and other circumstances had raised, but was considered rather to shew an affirmative renunciation of the claim. (Palmer vs. Dubois, 1 Mill, 181). A writ sued out upon a note and not continued, would be unavailing to change either the time, when the cause of action accrued, or that, when the action was commenced, if the statute of limitations was pleaded in an action on the note. These instances, however, serve only to suggest a difference between mesne and final process. A writ of capias ad respondendum, is at most a demand made by the plaintiff — his averment that the right sought by the writ belongs to him: an abandonment of the suit may well be argued to shew that the right never existed or has ceased. But before a fi. fa. issues, the right has been adjudged to the plaintiff: — every new order for execution is a recognition of the judgment as yet subsisting unsatisfied : a discontinuance raises a presumption of satisfaction to be sure, but only a natural presumption of fact, having, according to circumstances, more or less weight in creating belief, until twenty years have elapsed; and that presumption is, that satisfaction has been made since the last order for execution, and not that it was made at the date of the judgment or at any time prior to the last order. The objection to the present decision is, that the *511artificial force of the presumption arising from the lapse of twenty- years, counting from the date of the judgment, was allowed so far to prevail as to require the plaintiff to rebut it.— My opinion is, that every renewal of the fi. fa. arrested the presumption, and from the time of the last renewal only, should any artificial rule have commenced to operate. If, from the discontinuance of process and other circumstances the jury really believed that the judgment had been paid, they were justified in finding so — but it seems plain that their conclusion was produced by the influence given to twenty years, in disregard to the rebuttal made by every renewal.

In Frazer vs. Perdrieau, (1 Bail. 172,) the judgment, as well as the fi. fa. obtained on the bond against a co-obligor within twenty years, failed to rebut the presumption in favor of the defendant, which fourteen years neglect of all proceedings after the return of nulla bona on the fi. fa. raised in the opinion of the jury.

That in debt on a judgment, recovery is had of the sum adjudged, without regard to the process of execution, or that in sci. fa. the judgment only is set forth and execution of that is prayed, is of no more importance in the question we are considering, than it would be to say that in debt on bond, notwithstanding any payment or acknowledgement by the defendant, recovery is had of the original penalty.

In the case of Mullikin vs. Duval, (7 Gill & Johns. 355,) the plaintiff in debt on judgment, — when benefit was claimed of a statute which forbid that any bond or judgment should be admitted in evidence as good after the “ debt or thing in action was above twelve years standing,” — endeavoured to shew that the twelve years must be counted from the return of the fi. fa. It would not have availed him to count, (as in this case I think the twenty years, to which artificial force is ascribed, should be counted) from the teste of the last fi. fa. The words of the statute were held to be so imperative, that no acknowledgement nor evidence of continued existence could control them. In the course of his observations, the Judge, who delivered the opinion, *512speaking of the necessity of sci. fa. founded on the presumption of payment arising from lapse of time, says that, “ where continuances are entered upon the roll, they operate as a continuing demand of the debt by the plaintiif, and .seem to repel the legal presumption of satisfaction, which would otherwise arise from the lapse of time.”

The great indulgence which our statutes have given to the renewal of executions may, under the limitations which appear to be annexed to the decision now made, save the rights of many indulgent plaintiffs in judgment, whose debtors have been for a time insolvent, or so situated that fieri facias against them has been unproductive : but I think that the decision is calculated to establish a presumption in the face of contradicting circumstances which forbid belief, and may still, in maqy cases, work mischief and injustice.

Motion dismissed.

dissenting. The report states that the judgment of Samuel Campbell vs. William Campbell, was rendered in 1825, and renewed until 1835, a period of ten years; and the question is, whether the presumption of payment shall begin at at the date of the judgment or at the date of the last renewal. If the plaintiff had continued his renewals, I suppose he would have had an enforceable execution, and would, no doubt, have been entitled to the money, but because after ten years effort to make the money, he ceased to renew against an insolvent man, we are to presume the debt was paid in 1825, notwithstanding the renewals. I always suspect the correctness of any legal principle which leads to absurd conclusions: the result would be the same if he had continued his renewals nineteen years and eleven months as when he, continued them only ten years, if the presumption goes back to the beginning of the twenty years, which is assumed as othe time from which the presumption runs.

I have always supposed that presumptions were founded on acquiescence of all parties in a fact. Best says it is founded on probabilities arising from the conduct of the parties. In the case of Boardman vs. DeForest, (5 Conn. R. 1,) Hosmer, C. J. in his charge to the jury, says, the rule, that a debt is presumed to have been paid, is founded on this reason, that a man will naturally enjoy that which belongs to him, if not prevented by *508some lawful impediment. If this be the reason, how can any presumption arise whilst the plaintiff was claiming, by all the means in his power, the payment long after the law presumes it paid, if you begin the presumption at the date of the judgment.

The opinion in this case goes on the assumption that the presumption can be rebutted only by some act or declaration of the defendant. That is not exactly correct: there must also be an acquiescence in the fact by the plaintiff. A note is barred in four years, but yet if the plaintiff has sued out, and continued regularly, legal process for the recovery of his debt, the statute does not bar his action.

The case of Boardman vs. DeForest, when examined, will, I think, be no authority. There the question was, whether the payment by certain trustees of part of the judgment would prevent the presumption. The Court decided it would not. It was no act of the defendant, but of a stranger, and no demand was or could be made by the plaintiff of the trustees for any more than was paid.

The case of Mullikin vs. Duvall, (7 Gill & Johns. 355,) turned on the peremptory words of the Maryland statute of limitations, and is no authority in this case.

I might say much on the subject, but as my object is to express a dissent, and not to argue the point, I will add nothing more.