
    HEIRS OF CARLIN vs. LEWIS.
    APPEAL PROM THE COURT OP THE FIFTH DISTRICT, THE JUDGE OP THE SIXTH PRESIDING.
    The plea of payment is a question of fact, which is made out from documentary and other evidence; and when it appears from all the circumstances and presumptions arising out of the evidence, to be proved, the judgement of the inferior court in favor of the defendant, will not be disturbed.
    The plaintiffs in right of D. Carlin, deceased, claim from the defendant three hundred dollars, with interest, which they allege the latter obligated himself to pay to their deceased ancestor, as the difference in price between two tracts of land, which the parties exchanged with each other, in September, 1813. The clause in the deed of sale and exchange between the parties relied on, says: “And in case the said claim of land should be confirmed to the said Lewis,. and he secured in the title thereof, then, and in that case, the said A. Lewis is to pay to the said Dennis Carlin, three hundred dollars, in part consideration thereof.” The plaintiffs shewed that the title had been confirmed, as stipulated, by the government.
    The plea of payment, is a question of fact, which is made out from documentary and other evidence; and when it appears from all the circumstances and presumptions arising out of the evidence, to be proved, the judgement of the inferior court in favor of the defendant,will not be disturbed.
    
      The defendant being absent, a curator ad hoc was appointed to defend. He made affidavit, and called on the plaintiffs for the production of a bond, for two thousand five hundred and twenty-three dollars, which D. Carlin, in his lifetime, had given to the defendant, and which he averred had been paid in part, by the very sum of three hundred dollars now claimed, being credited on it. The bond could not be found. The defendant plead payment, and the prescription of five, ten, and twenty years, &c.
    The District Court gave judgement on the ground, the debt had long before the institution of this suit, been paid; and decreed that the plaintiffs be for ever barred from setting up any claim for the same cause of action. The plaintiffs appealed.
    The fact of payment was made out by circumstantial and presumptive evidence, arising out of the transactions between the parties and the lapse of time.
    Simon, for the plaintiffs, submitted the case without argument, on the ground that the defendant had not made out his proof.
    
      Bowen and Lewis, for the defendant, submitted the case.
   Martin, J.,

delivered the opinion of the court.

The plaintiffs claim a sum of money on a sale, confirmation and exchange of lands between their ancestor and the defendant. He pleaded the general issue, payment and prescription. The plaintiffs are appellants from the judgement, by which the court decreed, that it appearing to its satisfaction, that the debt claimed by the plaintiffs was paid and extinguished, there should be judgement for the defendant. This of fact, is the only one complained of; and the case has been submitted to us without argument. There is documentary and other evidence; the examination of which has , . . led us to the conclusion, that the judge did not err.

It is, therefore, ordered, adjudged, and decreed, that the 7 7 7 Jo? 7 judgement of the District Court be affirmed, with costs in ,. , both courts.  