Majority
p. 604Nathaniel Vaughan, defendant below, Appellant, v. Aaron Marshall, plaintiff below, Respondent.
Headnote
A partial payment made within twenty years on a judgment of longer standing, will rehut the legal presumption of its payment; hut if the parties have subsequent dealings within that time and the plaintiff falls in debt to the defendant on book account, he cannot indorse the amount on the record as a credit to the judgment, so as to rebut the presumption of its payment, unless it be further shown that they have had a settlement of their subsequent dealings, and it was so agreed between them.On appeal from a justice of the peace. The action below was a scire facias, at the suit of Marshall, on a judgment recovered by him against Vaughan, before Peter Hall, formerly a justice of the peace, on the 10th day of July, 1830, for $20.88 and costs.
Marshall, the plaintiff below, gave in evidence the record of the original judgment;, also his book of account against Vaughan, which showed subsequent dealings between them, in which he became a debtor to Vaughan within the last twenty years, in the sum of $9.27, and which he had after-wards entered as a credit on the record of the judgment, which he relied on to rebut the presumption of payment arising from the lapse of time since the recovery of it.
The Court,
charged the jury: Payment of the original judgment below is pleaded, and the defendant below relies on the legal presumption that it is paid, resulting from the length of time, more than twenty years, which has elapsed since it was recovered, to sustain the plea. But on the other side, it is proved that the parties have had subsequent dealings within the last twenty years, and that Marshall has fallen in debt to Vaughan, on book account, to the amount of $9.27, which was afterwards indorsed by him on the docket of the justice as a credit to the judgment. This is an action of scire facias on that judgment coming up here on appeal, in which it would be
p. 605
competent for the plaintiff in it, to prove a partial payment of the judgment within twenty years, to rebut the presumption before referred to; but it must be a payment on the judgment, not a mere matter of cross demand due the defendant below, but the plaintiff here, on book account; unless it is further shown and proved that the parties have had a settlement of their subsequent dealings, and it had been agreed between them that the balance due Vaughan, the plaintiff here, on the settlement, should be a credit on the judgment. But without such further proof, the mere act of the plaintiff below, in indorsing this credit on the, judgment, cannot have the effect to repel the presumption of its payment.
E. D. Cullen, for plaintiff.
Robinson, for defendant.
Verdict for defendant below.