
    Hayes v. Sunman, Executor.
    APPEAL from the Dearborn Circuit Court.
    Wednesday, December 12.
    
   Perkins, J.

Scire facias by Simman, executor, &c., to revive a judgment against Hayes, rendered in the Dearborn Circuit Court, at the May term, 1845, for 305 dollars and 45 cents, and costs. The scire facias was issued in April, 1852.

The defendant pleaded payment. The plaintiff replied, denying payment; and the attorneys agreed “ that all matters of testimony might be given under said issue that could be pleaded in support or defence of said action.”

The cause was submitted to the Court.

The original judgment being admitted by the pleadings, the defendant proceeded to give in evidence a receipt as follows, appearing on said judgment:

“ Received of Jacob Hayes three hundred and sixty dollars and eighty-six cents, in full of this judgment and interest up to this date (costs excepted). May 18th, 1849. William V. Cheek, clerk.”

Cheek was, at the time, the clerk of the Court, and the signature to the receipt was genuine. These facts were proved.

The plaintiff then introduced Cheek as a witness. He testified that he received no money at the time of giving said receipt; that Hayes had previously loaned him money which was due, and that he took up his own paper from Hayes with the receipt, and promised him to pay Srnmcm. He further testified that soon after the transaction, he wrote to Simman, “ and informed him that he had assumed the payment of said judgment.”

Nearly a year afterwards he received the following reply: “ Sunman’s, Ripley county, Indiana. W. V. Cheek, esq., Dear Sir:—Having been absent from home during the winter, I did not see your communication till of late. I wish you to have the amount coming to me in readiness by the 25th of May, or a week sooner, if possible, and I will come down to town at that time. Write me word if you can have it sooner, as I must settle at next Probate Court, in Jtme. I am, sir, very respectfully, your obedient servant, T. W. ¡Summon?

J. Hyman and T. Gazlay, for the appellant.

E. Dumont, for the appellee.

The witness proceeded—“ Shortly after the receipt of said letter, I met the plaintiff. I told him if he would let me have or keep said money (the amount of said judgment) for a certain time, (I think six months), I would allow him ten per cent, interest for it. To this he made no reply, but remarked that he would call on me when he wanted the money. At the date of said receipt, and till the latter part of the year 1849,1 was good, and the money could have been made off of me; but in 1849 I failed, and have remained insolvent ever since. Plaintiff called on me several times for the money, but never brought suit.”

This was all the evidence.

The question for our determination is, not whether it proves payment, but whether it proves that Su/nman had agreed to take Cheek for the money and release Hayes, the agreement of the parties on submitting the cause going to that extent. The evidence was for the jury, or Court sitting as such, and it was found that such an agreement had not been made; and we can not say the finding was erroneous.

Per Cwriam.

The judgment is affirmed, with 5 per cent, damages and costs.  