correctness, we are left without any finding in the "report of audit and distribution" as to the nature of this transaction. Was it intended as a loan of money by the wife to the husband, or as a gift? Upon this vital question of fact we are not enlightened. That the learned judge felt the strain of this part of the case is apparent from his opinion, in which he says: "Aside from the proof of actual payment of the husband's note by the wife, with her separate funds, the testimony consists almost entirely of statements made by this decedent to his neighbors since his wife's death, the substance of which leaves it in some doubt whether the first transaction was a gift, a loan, or an agreement that his heirs and his wife's heirs should share equally in their estates. The whole testimony, however, leaves no doubt of the decedent's indebtedness to the Fenstermacher heirs for something, and of his acknowledgment of the same, down to a short period before his death."

But one witness speaks of any acknowledgment by decedent of an indebtedness to the Fenstermacher heirs. This was Henry Gruver, who has borrowed money of decedent. When the latter called upon Gruver about this money, this is what occurred, according to Gruver's testimony: "He said by right he should not loan the money; that he had money; that by right he should take the money and pay off the Fenstermacher heirs, but then a couple of them had offended him, and he would put the money on interest." Of another interview the witness said: "About three years ago, John Peters got me to take him down to Black Creek, and in conversation he said he was getting old, and said that, if I could give him this money; he would pay off the Fenstermacher heirs. I asked him how much he owed them. He said he did not know how much. He said he owed them, and that if Mr. Peters had the money I owed he would try to settle with them."

This is indefinite. No amount is fixed, nor are the Fenstermacher heirs designated. It was fairly off-set by the decedent's declarations before referred to that his wife gave him the money to help pay for the farm and prevent its being taken from him. We regard this evidence as insufficient to rebut the presumption of payment. After a lapse of twenty years, mortgages,

judgments, and all evidences of debt, are presumed to be paid. Foulk . Brown, 2 Watts, 209; and a recognizance in the Orphan's Court, Beule v. Kirk, 3 Norris, 415; and in less than twenty years, with circumstances, payment may be presumed. Hughes v. Hughes, 4 P. F. S. 240; Briggs' Appeal, 12 Norris, 485. After twenty years the law presumes that every debt is paid, no matter how solemn the instrument may be by which such debt is evidenced. And such presumption stands until rebutted. This presumption gathers strength as time advances, and it is not too much to say that, after thirty years, it ought not to be overcome by anything but clear proof. We are of opinion that the evidence in this case is too vague and uncertain to rebut the presumption after this great lapse of time. To the violence of the presumption must be added the unsatisfactory proof of the claim itself. That it is not more distinct may perhaps be owing to its antiquity, but that very fact should admonish us that claims. of this venerable character can never be admitted without great peril to the estates of the dead. The fact must not be overlooked that there is not to be found in the case a trace of any claim by Mrs. Peters during her lifetime upon her husband for this money. It comes now from her personal representatives. Mrs. Peters died in 1855. Her husband, the decedent, died in 1881. It was not until two years after his death, some time in 1883, that letters of administration were taken out in the estate of Mrs. Peters. During all this time the decedent, or his estate, was solvent.

Whether the presumption of payment is sufficiently rebutted is a question of law for the court. Beule v. Kirk, supra. In holding, as we do in this case, that the presumption was not overcome, we do not overturn any of the findings of fact in the report of audit.

The second claim is in no better position as respects the presumption. It is not as old as the first claim by several years, but it is quite old enough for the presumption of payment to attach, in the absence of stronger proof, to rebut it. Aside from this, it is at least doubtful whether it was not included in the first claim. There is no evidence that Mrs. Peters had at any time more than the sum of $583.30 as her separate estate. It is probable, therefore, that the $150 was a part of that sum.

As both

claims must be disallowed, any reference to this matter is unnecessary.

The decree is reversed at the costs of the appellees, and the record remitted, with instructions to make distribution in accordance with this opinion.

A. R. Brundage and Q. A. Gates, for appellants.
John McGahren and John T. Lenahan, contra.

Supreme Court of Pennsylvania.

IN RE PRIVATE ROAD IN NESCOPECK TOWNSHIP.

1. Appeals from assessments of damages to the owner of property taken for public use, under the act of 13th June, 1874, must be entered within thirty days from the filing a report thereof in court, and not from the confirmation of the report.

2. The time when the report is filed is the time when the damages are ascertained. The thirty days allowed for the appeal must begin to run from that time.

For opinion of the court below, see 2 Kulp, 487.

Certiorari to the Quarter Sessions of the county of Luzerne.

THE COURT.-The court committed no error in holding the appeal was not taken in the time authorized by the statute. It provides the appeal may be taken "within thirty days from the ascertainment of the damages, or the filing a report thereof in court, pursuant to any general or special act, and not afterwards." The damages were ascertained by the viewers. The report thereof was filed in court on the 6th of December, 1882. The appeal was not taken until the 5th April, 1883. The fact that exceptions had been filed did not extend the time within which an appeal might be taken. It might have been taken at the same time the exceptions were filed. The act does not designate the time of the confirmation of the report as having any bearing on the time of appeal. Gwinner v. Lehigh and Delaware Gap Railroad Company, 5 P. F. Smith, 126.

Judgment affirmed.

Palmer, Dewitt & Fuller and Geo. B. Kulp, for certiorari.
E. G. Butler, contra.

Supreme Court of Pennsylvania.

HENDRICK V. THOMAS.

1. A compromise and payment to the creditor of part of the amount of a judgment restricted in its lien in satisfaction of the whole is upon sufficient consideration and is valid, even though the property out of which it is collectible is of far greater value than the whole debt.

2. Part payment of an overdue but unrestricted debt is not of itself a good consideration, though if the debt were not yet due it would be.

3. Where a debtor pays a portion of the debt on execution, and makes a collateral indefinite promise to give the creditor future employment, whereupon the creditor satisfies the judgment; upon failure to give the employment promised, the remedy is by action for breach of contract, and not by striking off satisfaction of the judgment, or by trial of an issue upon the judgment.

For same case between the parties, see 1 Kulp, 381; 2 Kulp, 149.

Error to the Common Pleas of Luzerne county.

The opinion of the court was delivered May 19, 1884, by TRUNKEY, J.-In 1872 Hendrick and Thomas purchased a tract of land formerly owned by Hollenback, and engaged in the business of mining coal. On July 31, 1873, Thomas sold his interest to Hendrick for ten thousand dollars, for which Hendrick gave his bond, with warrant of attorney to confess judgment, conditioned that neither the obligation nor the judgment entered thereon should be collected from any other property of said Hendrick than that purchased of the Hollenback estate by the firm of Hendrick & Thomas. Judgment was entered upon the bond, and after four thousand dollars had been paid, it was revived by scire facias for eight thousand six hundred and sixteen dollars. Soon after the revival, execution was issued. On application of Hendrick, November 13, 1880, a rule to show cause was granted why an order should not be made restricting the collection of the judgment to the Hollenback estate, and why execution should not be stayed as to all other property of defendant. It does not appear that that rule was ever disposed of by the court. But the parties compromised, and January 6, 1881, Thomas gave a receipt in full satisfaction of debt, interest, and all costs paid by him, Hendrick to pay all costs then unpaid, and upon payment thereof the sheriff to return the writ stayed.

by order of plaintiff. Hendrick paid the costs on the next day. Thomas, by his attorney, February 21, 1881, received the costs due to himself from the sheriff and stayed the writ. Nothing further was done until March 6, 1882, when an alias execution was issued. Thereupon Hendrick applied for a rule to show cause why the judgment should not be opened, which was made absolute, and the parties agreed upon an issue for trial to be formed by the judgment standing as a declaration, and the defendant pleading payment, with leave, etc.

At the trial to overcome his receipt, the plaintiff adduced his own statement, unsupported by other testimony, that, as a part of the agreement of compromise, Hendrick promised to give him employment; and upon this point he was contradicted by the defendant, who was strongly corroborated by the other witnesses, who had knowledge of the transaction. The jury evidently thought with him that, " fortunately for truth and justice, witnesses are to be weighed, not counted." This being so, it is well to ascertain the terms of the contract from his own testimony. After stating that he and Stuart went to Hendrick's office, and Stuart stated their business, he says: "Hendrick received us very kindly; he said he didn't know whether he could make any arrangement or not; he had been talking about making arrangements with the Butler Coal Company, but if he could make arrangements with me, he could make arrangements with them, and then they would want me to take charge of the mines, run the mine for him. Then the question was asked by Mr. Stuart how much he would give to make a settlement? He said he wouldn't give over six thousand dollars; and if I would make arrangements for those six thousand dollars, why he could make arrangements with the Butler Coal Company and have the breaker start up, and I could have the charge of it. I says: If you will do that, I will take the six thousand dollars. and settle this law business.' He said he would." Then they went to Gritman's, the receipt was written, read, and signed, and Hendrick gave him the check for six thousand dollars. In cross-examination, he said that Mr. Cowan, treasurer of the Butler Coal Company, had previously told him they were satisfied they could make arrangements with Hendrick if he