JUDGMENT
Phear, J.
1. I think the Act was only intended to apply to those eases in which the hill itself together with mere lapse of time is sufficient to estahlish for the plaintiff a prima facie right to recover.
2. In this case the plaintiff is obliged to allege the occurrence of another fact besides the lapse of time since the making of the bill, namely, that the first instalment has not been paid, which fact is necessary according to the terms of the bill in order to complete the plaintiffs’ right to sue. There is no evidence before the Court of this fact, and I do not think the Legislature intended that the summons served in the forms prescribed by Act V of 1866 should have the effect of enabling the plaintiffs’ statement of the fact in his petition to prevail without evidence.
3. It is argued that the day for the payment of the first instalment being past, it would be incumbent on the defendant to prove payment in answer to any claim for that alone; and that therefore this instalment must be taken to be unpaid until the defendant proves the contrary, which he is not allowed to do in these proceedings. But this argument I think involves a slight error. The lapse of time alone suffices to establish that the first instalment is due to the plaintiff: but it does not give rise to any presumption either way as to payment: only in a suit for that instalment, the money being shown due, the burden of proof on the contest is shifted. There being then no presumption that the instalment is not paid, a fortiori there is no presumption that the second instalment is due. In short, there is no ground of presumption or evidence on which the contingency required to complete the plaintiff’s right of action has happened, and I don’t think, as I have already said, that the procedure of Act V of 1866 was intended to enable the plaintiff to succeed on his own allegation merely.
4. I cannot give the plaintiff a decree as the case now stands, but a fresh summons as under Act VIII of 1859 may issue.
