
    Harvey v. Quick and Another, Executors.
    Suit by the indorsee upon a promissory note for 65 dollars. The maker and the payee were both deceased. Answer, payment by the maker in his lifetime to the payee in his lifetime. The evidence showed money payments to the payee, amounting to from 75 to 90 dollars. Upon what indebtedness the payments were made, did not appear, nor did it appear that the note in suit, or any note, was referred to. There were running accounts between the parties. Ending and judgment for the defendant. Held, that this Court cannot disturb the finding.
    Even where the verdict is such as this Court would not find from the evidence, it is the settled rule not to disturb it, except in extreme cases.
    To justify interference by this Court, the insufficiency of the evidence must appear beyond all doubt.
    But in this case, payments having been made, and no claim except the note being specifically shown to exist, the Court must presume that the payments were made on the note.
    
      Friday, June 5.
    APPEAL from the Franklin Court of Common Pleas.
   Stuart, J.

This was an amicable suit in the Common Pleas against the estate of John Quick, deceased, of whom the defendants were executors. The cause of action filed, was a note under seal, dated November 15, 1838, payable to Jacob Harvey, sr., for 65 dollars, with 10 per cent, interest. The payee assigned the note, on the first of January, 1850, to the plaintiff, Jacob Harvey, jr.

The defense set np by the executors of Quick was, payment made by Quick, in his lifetime, to Harvey, sr., in his lifetime. On this issue of payment, the cause was submitted to the Court. Finding and judgment for the executors of Quick. A motion for a new trial, interposed at the proper time, was overruled, and the evidence made part of the record. Harvey, the plaintiff below, appeals.

The evidence shows several money payments to Harvey, sr., to the amount, together, of from 75 dollars to 90 dollars. The witnesses are thus general as to the amount. Nothing was said at the time, upon what indebtedness these payments were made; nor was the note in suit, or any note, referred to. It further appears that the parties had long been near neighbors, and had other dealings. At the very time of the payments, there were running accounts between them. There is other evidence in relation to the pecuniary circumstances of the two parties, which, in this state of the case, cannot have much weight.

The only question before us is, whether this is such a glaring case of failure in the evidence to authorize and sustain the finding, as to justify the Court to disturb it. We think not. Even were the verdict such as we should not have found from the evidence, it is the settled rule not to disturb it unless in extreme cases. It was early and wisely held, that unless the insufficiency of the evidence appeared beyond all doubt, the Court would not interfere. Mann v. Clifton, 3 Blackf. 304. And so it has been repeatedly ruled since. And the rule has been applied in cases of a high grade of crime. Weinzorpflin v. The State, 7 Blackf. 186.—Ledley v. The State, 4 Ind. R. 580. The finding of the Court in this case, stands in the nature of a verdict, and must be treated with the same respect.

But we are inclined to regard the finding as right on principle. The evidence clearly shows that Quick paid Harvey, sr., money on several occasions. It is true it is said that there were other dealings and running accounts between the parties. But this note is the only one shown exist. No other claim of any kind is pretended to be specified by any witness. No particular debt was spoken of at the time of the payment. The only presumption to be indulged in such a state of facts is, that this is the indebtedness referred to, on which the payment was to be applied.

G. Holland, for the appellant.

D. D. Jones and II. Berry, for the appellees.

Per Curiam.

The judgment is affirmed with costs.  