
    HENDERSON v. MOORE
    The refusal c. the court he* low to punt a new trial is not up"n the plea of payment to ^^"upon bond condlto W ¡(le„ce may°he ’received of the with an Ac^"he^ntlff that it was in “’n °£ a“nje" fróm such evicontradicted"’ the jury may ¡“fo.0"^Jlnent 0" "v^vVoir.
    ERROR to' the circuit court of the district of g-, i ,. t-olumoia.
    , On the plea of payment to an action of debt upon a bond, for 500 dollars, dated in .178 Í, the defendant offered evidence to prove that in the'year 1797 the plaintiff acknowledged that he had_ received of the money of the defendant to the amount of about 1,000 dollars,, of one Willoughby Tibbs, out of the amount of a decree which the defendant had obtained against him for 3,000 dollars, and that the money which he so received was in full of all his claims against' the defendant, the' plaintiff having paid for the defendant several sums of money. There . was no settlement made, nor any receipt given. “ Whereupon the plaintiff prayed the court to inStructthe jury,that if from the evidence they should be satisfied that the bond had not been fully paid off, no declaration of the plaintiff’s ‘ that his claims against the defendant were all satisfied’ would be a bar .to his recovery in this action ; which instruction the court refused tb give as prayed, but directed the jury that if ’they should be satisfied by the evidence, that the defendant, in the year 1797, paid the plaintiff a sum of money less than the amount mentioned in.the condition of the bond, which the plaintiff at that time acknowledged to be in full satisfaction of all his claims against the defendant, such payment and such acknowledgment, are competent evidence upon the plea of payment, and that the jury may and ought to presume therefrom that the whole sum mentioned in the condition of the said bond has been paid to the plaintiff, unless such presumption be repelled by other evidence in the,; cause; to which refusal and instruction the plaintiff excepted.’’
    The verdict being for the defendant, his counsel moved the court for a new trial, and grounded his motion upon sundry affidavits tending to prove that the whole amount of the bond remained due to the plaintiff, and that he was, surprised by unexpected testimony at the trial. But the court refused to grant a new trial.
    Two errors were assigned.
    1. That the court below refused a new trial.
    2. That the court ought to have given the instruction to the jury as prayed by the plaintiff.j;ánd ought not to have given the direction which they did.
    Marshall, Ch. J. said that this court had decided at the last term, that a refusal, by the court below to grant a new trial was not error.
    The case being submitted upon the other point, without argument,
   Marshall, Ch¿ J.

That there was no error in the opinion of the court below. A part of the money due' on the' bond might have been paid before; and such an aclcnowledgment, • upon receipt of a sum smaller than the amount .of the condition of the bond, was good evidence upon the plea of payment.

Judgment affirmed with costs.  