
    W. H. Scrivener v. W. P. Noland.
    Actions — Action at Law When Same Should Have Been by Suit in Equity— No Objection.
    It is not reversable error to try the issues of fact by a jury in a common law court, in an action that should have been brought in a court of equity.
    APPEAL FROM ESTILL CIRCUIT COURT.
    
      June 15, 1869.
   Opinion of the Court by

Judge Peters:

As the execution of the writing sued on was admitted 'by the appellant, and the'payment of the debt by appellee is shown by the proof, for which appellant by said writing undertook to indemnify him, and it is also shown by the prof that the paper was procured to be destroyed by the representations of Hazzard P. Noland, the onus of proving that the debt was paid rested on him. And the instructions of the court fairly submitted that question to the jury, and we cannot say that their finding is not sustained by the evidence.

Although the action might have been brought in equity, still as.no objections were made to the jurisdiction of the common law court, and there was no motion to transfer the case to the equity docket, it is not a reversible error to try the issues of fact by a jury, and the judgment in conformity to their finding, should not be disturbed. Section 12 Civil Code.

As to the credit of $20 on the execution, appellee alleges that the amount he paid was $52.19. It does not appear from the endorsement on the execution who paid it, and there is no evidence that it was paid by either of the other defendants, who wre alleged to be insolvent, and the jury might therefore have concluded appellee paid the whole debt.

Judgment affirmed.  