(after stating tlie case.) The bond on which the judgment was rendered having been executed June 9th, 1858, and the summons in the action having been issued on the 25th day of August, ,1885, it is insisted by counsel for the defendant, that “it was presumed to be paid and barred by the siatute of presumptions,” and that the judgment of September 25th, 1875, having been set aside, could have no force and effect, and though the action in which that judgment was rendered was commenced within ten years, and the present action was commenced within less than a year after it was set aside, the judgment so set aside “ was equivalent to no judgment, whether remaining upon the docket or not.”
The bond sued on having been executed in 1858, there can be no question as to its being governed by the statute of presumptions (R. C., chap. 65, sec. 18). This is not a statute of limitations, and no bar to a recovery, but only raises a presumption of payment, which may be rebutted; and, in view of the verdict of the jury, it is unnecessary for us to determine whether the second action, commenced within less than a year after the judgment in the former was set aside, would of itself repel the statutory presumption of payment, by relation back to the commencement of the first action, in analogy to the provision contained in section 8, chapter 65, of the Revised Code, and in section 166 of The Code.
*332It appears from the record that the jury found, as a fact, that the “ bond had not been paid,” and if so, it makes no difference whether the action was commenced within ten years or after ten years.
What evidence was before the jury, or whether there was any exception to any evidence, does not appear; nor does it appear that any instruction was asked for, or that any given by the Court was excepted to, and, in the absence of anything indicating the contrary, we must assume that the finding of the jury was correct.
There is no error. Affirmed.