Diblin v. Murphy.

against the driver; and there was evidence on both sides as to the point whether the driver was guilty of negligence, or whether the occurrence was owing to the plaintiff's own carelessness.

We are satisfied that the verdict ought to have been considerably less; and the amount is so much more than it should have been, as to indicate either passion or prejudice on the part of the jury. It is a case, therefore, where we feel compelled to interfere with the verdict, and to set it aside as excessive, unless some other remedy may be adopted.

Then what is proper to be done? We have considered it, and find no objection in principle to reducing the verdict to an amount, such as if the jury had found it as the damages, we would not interfere with their conclusion. That is in effect, for the court to say to the plaintiff, if you will enter a remittitur so as to reduce the verdict to such a sum as we think would not have been unreasonable if it had been found by the jury, we will not set it aside. This practice is very common in actions upon contract, where the party has recovered more than he is entitled to.

The only doubt is whether in actions of tort the court can adopt the same practice. We see no objection to it in principle, and it will often relieve the parties from the expense and delay of a new trial.

We find that this has been done in an action of trover in the courts of South Carolina. (Guerry v. Kerton, 2 Rich. R. 507; and see Young v. Englehard, 1 Howard's Miss. R. 19.)

That the court has entire control of the matter, is shown by the case of Boyd v. Brown, 17 Pick. 453, which was a similar case, the action being trespass. There the court, finding that excessive damages had been given, ordered a new trial for the assessment of the damages only, and not permitting either party to go into any question as to the right to recover. The decision shows, we think, that the court may give the plaintiff the option to reduce his verdict to an amount which the court would not have deemed unreasonable or excessive.

We shall therefore make an order which will give that option to the plaintiff, and that the amount should be fixed at five

Austin v. Tompkins.

hundred dollars. The verdict is to be set aside on payment of costs, unless the plaintiff, within ten days, will stipulate to reduce it to this sum, in which case the motion for a new trial is denied.(a)

AUSTIN and others v. TOMPKINS and others.

The limitation of suits upon judgments, prescribed by the revised statutes, does not apply to judgments recovered before those statutes took effect.

Such judgments, being governed by the provision as to presumption of payment by lapse of time, the defendant intending to rely upon such presumption, must set up the fact of payment in his plea or answer, and insist upon the lapse of time as evidence of that fact. He cannot demur to the bill, however stale the judgment may appear to be as therein set forth.

A statement of the recovery of a judgment against administrators, for assets quando acciderint, and that no assets have ever come to their hands, rebuts the presumption of payment which might otherwise arise from the lapse of time since the judgment was recovered, as set forth in the bill.

Where the government allows a claim made against it in behalf of a person deceased, and directs the amount to be paid to his children and heirs, and not to his administrators, the fund is nevertheless liable to his debts, and it may be followed by his creditors in the hands of such children and heirs.

(Before DUER, MASON, and CAMPBELL, J. J.)

June, 1849.

DEMURRER to a bill of complaint, filed in May, 1847, in the late court of chancery, and transferred to this court from the supreme court. The complainants are the executors of Thomas Gough, deceased; the defendants are the administrators and heirs of Daniel D. Tompkins, formerly governor of the state of New York, and vice-president of the United States. The bill stated that Thomas Gough, in November, 1826, recovered a judgment in the supreme court against the administrators of Gov. Tompkins, after a plea of plene administravit, &c., which judgment was for assets that might thereafter come to the

(a) The plaintiff stipulated accordingly, and there was no new trial.

Austin v. Tompkins.

hands of the administrators. That T. Gough died in December, 1826. That no assets have since the judgment come to the hands of T.'s administrators, and the judgment is still wholly unsatisfied. That at the time of Gov. Tompkins's death, there was due to him a large unliquidated balance from the government of the United States, which was never adjusted till February, 1847. That on the 22d February, 1847, an act of Congress was passed, liquidating the debt at $49,795 02, and directing the Secretary of the treasury to pay the same to Gov. T.'s children and heirs: and that the same has been paid to them accordingly. The bill prayed for a receiver, for payment of the amount to him, for distribution of the same as assets, and for payment of the complainant's judgment.

Two of the defendants demurred to the bill for want of equity, and on the ground that over twenty years had elapsed when it was filed, after the recovery of the judgment and death of Gough, and the bill did not aver that any part of the judgment had been paid, or any written acknowledgment of indebtedness for any part of it been made, within that twenty years, or at any time since the judgment.

G. G. Waters, for the defendants, in support of the demurrer.

J. Anthon, for the complainants.

BY THE COURT. MASON, J.-The demurrer in this case was framed upon the idea that the forty-seventh section of the second title of chapter four, part third, of the revised statutes, was applicable to the judgment mentioned in the bill. But upon reference to that section, it will be seen that it relates only to judgments and decrees to be rendered after the act took effect, that is after January 1st, 1830. This case comes under the forty-sixth section, which declares that " the presumption of payment shall apply to all judgments of a court of record in this state, rendered before the 3d of April, 1821, and to all such judgments rendered before this chapter shall take effect as a law, in the same manner as such presumption applies to sealed instruments."

Austin v. Tompkins.

Even then, if it be necessary, as the pleader seems to have imagined, in a case arising under the 47th section, for the plaintiff in his bill to aver payment of some part of the judgment, or proof of a written acknowledgment of indebtedness upon it, (about which we express no opinion,) it clearly was not necessary in the present case.

The section of the statute which governs this case, does not create a bar to actions upon judgments after any given period, but only applies to them the same rule of evidence which the courts had previously established with regard to sealed instruments, and which was this: that they are presumed to be paid if they have been outstanding for twenty years, and no payment made on account, or acknowledgment given of their being due, and there are no circumstances which tend to remove the presumption. An inference of fact is drawn from the staleness of the demand, to wit, that the demand has been paid. Now the office of a demurrer is to bring before the court questions of law only. It is an admission of all the facts alleged by the plaintiff, and an averment that the inferences of law for which he contends, do not legitimately flow from the facts. The presumption of payment, however, is an inference not only of fact, but of a fact in contradiction of the claim of the plaintiff, and cannot therefore be made upon a demurrer. (Mitford Pl., p. 213, 4th ed.) It is therefore the established doctrine of the courts of this state, both of law and equity, that in those cases where the statute of limitations has not created a positive bar, the party wishing to raise a presumption of payment from lapse of time, must plead payment, or set it up in his answer, as a fact, and rely upon the lapse of time as evidence in support of his plea or answer. (Livingston v. Livingston, 4 J. C. R. 287; McDowell v. Charles, 6 ib. 132; Henderson v. Henderson, 3 Den. 314; Fellers v. Lee, 2 Barb. S. C. R. 488.)

But there is another decisive answer to the presumption of payment in this case. The judgment rendered was a judg ment of assets quando acciderint, and it is expressly alleged in the bill that no assets of any value or character whatever had at any time come to the hands of the administrators to be admi

Austin v. Tompkins.

nistered, and that the judgment remained in full force and unsatisfied. This fact of want of assets, effectually removes the presumption of payment, and accounts for the omission of the plaintiff to proceed upon the judgment. Insolvency and inability of the debtor to pay, have always been deemed sufficient for that purpose.

It is impossible, therefore, to sustain this demurrer on the ground of presumption of payment.

The demurrer for want of equity is also untenable. It is stated in the bill that at the time of the decease of Governor Tompkins, the government of the United States was largely indebted to him for an unliquidated balance of account; that the same remained unadjusted and unliquidated until on or about the 22d of February, 1847, and formed the whole of the remaining personal assets of the estate of Tompkins for the payment of his just debts; that about the time last mentioned, the government liquidated the accounts, and fixed the amount justly due to Governor Tompkins, at $49,795 02, but directed the payment to be made not to his administrator, but to his children and heirs.

Now if this be so, and the demurrer expressly admits it, these moneys then due to Gov. Tompkins, and for so long a time unjustly withheld from him, belong in equity to his creditors. The government can no more divert them from their legitimate and honest application, than a private individual could in similar circumstances; and if it pay an acknowledged debt, not to the party to whom it is due, but to other persons with a view to screen it from that party's creditors, equity will lay hold of the money in the hands of the payees wherever it can be traced, with a view to compel its distribution among those who are entitled to receive it. It is on this principle that relief is sought in this case against the children and heirs of Governor Tompkins. They are the recipients of a fund on which the plaintiffs have a prior and better claim. The money belonged to their ancestor; they claim only as representing him, without having paid any valuable consideration. The plaintiffs being creditors of the ancestor, have the same rights in equity against the fund, which they would have had against the ancestor himself,