#### W. W. Wilbur, Administrator W. Morris, *ads.*A. G. Willis.

Tried before his Honor Judge Gantt, Charleston, Spring Term, 1836,

This was an action of assumpsit, to recover bank one hundred dollars, which had been paid on a judgment, and not credited ; the judgment was entered on the 13th of May, 1833, in the case of William Morris against A. G. Willis for f 287, with interest from the 19th of May, 1832-

William Howland was called as a witness, and was objected to on the ground that he is the next eldest judgment creditor of A. G. Willis ; the objection was not sustained. The witness stated that he had a conversation with William Morris ; he stated that Morris had joined Willis on his going into business in two notes. That Morris told him he had received on the two notes on which the judgment was given $110. That the conversation was about three weeks before Morris’ death.

The clerk of the court being sworn, said that the judgment is unsatisfied, that no payments appear to have been made thereon. On his cross-examination the witness deposed that when payments were made they do not appear on the judgment. That an execu. tion was issued in this case.

Next was read the examination of Mr.-Shuler, sheriff of Oraugeburgh district, who among other things, deposes that he commenced the duties of his office in February, 1835. That no execution in the case of Morris against Wi'lis, was returned over to him. That in the execution book is entered the case of Morris against Willis. .That the letter annexed is in the hand writing of William Murrow., late sheriff. This letter was addressed to William *244Howland, informing him that Morris has an older judgment, which will coyer the amount of sales of goods levied on, and that if any thing remained he would inform Mr. Howland. That William Morris’execution is the oldest execution on the sheriff’s books. That he knows nothing of the sales made of Willis’ property. That on Howland’s execution, there appears to have been a levy on the goods of Willis. He knows nothing of payments made.

Here the testimony closed ; and a motion was made that the plaiuliff be nonsuited ; the motion was overruled, and a verdict was given for the plaintiff under the charge of the court.

I was duly served.with notice that an appeal would be taken ; all of the grounds will depend upon the testimony as exhibited in this report.

RICHARD GANTT.

In this case the defendant purposes to renew before the Court of Appeals, the motion for a nonsuit, on the ground that from the evidence adduced, as applied to the matters alleged in the declaration, the plaintiff had no ground of action.

Should that motion fail, the defendant will move for a new trial on the following grounds, viz :

1st. That there was no evidence that the defendant had received any money of the plaintiff, beyond the sum of $119, paid in partjof a judgment of $287, with interest from May, 18&2.

2d. That there was no evidence of a levy under the execution of the plaintiff, and no legal evidence oí' the existence of the execution.

3d. That the evidence adduced by the plaintiff, proved that the defendant was warranted in issuing the execution ; and there was no evidence that it was issued for more than the sum admitted to be due.

4th. Because there was no testimony that *the*sheriff had received any money whatever, on account of the plaintiff.

5th. Because if any right of action existed against the defendant, it was on the part of Wdliam Howland, the junior execution creditor, and not on account of the plaintiff.

6th. Because William Howland, was an incompetent witness.

7th. Because the letter of W. Murro vv to William Howland was not competent testimony.

8th. Because the testimony offered in regard to a levy, was improperly admitted as not being the best evidence.

9th. Because the verdict of the jury was against law, and without any legal evidence.

DUNKIN <fc BREWSTER, *Defendant's*Attorneys.

Mr. Justice Richardson

delivered the opinion of the court.

The facts of this case are plain. In 18*3, W. Morris obtained a judgment against A. *G.*Willis, for 287 dollars, and interest; re-*245ceíved a partial payment of 110 dollars ; and issued execution for the amount of his judgment.

A levy was afterwards made upon the goods of Willis, under a junior judgment of Wm, Howland, No return of the execution of Morris has been made ; and no account of the sales, or proceeds of the goods, so levied.

Upon these facts, A. G, Willis, sued the administrator of W. Morris, and has obtained a verdict for 110 dollars.

The question made by the appeal, is, can such a verdict be justified ?

There is no evidence that Morris, or his representative, ever received more than the partial payment of 110 dollars. But it is urged, that, inasmuch as, under legal presumption, the judgment of Morris is supposed to be satisfied, by virtue of the levy upon the goods of Willis ; therefore, the 110 dollars ought to go back to Willis ; especially, as he did not credit his execution, with the payment made ; but appears to have issued it for the original amount of the verdict.

There is no question upon the position of law, taken for the plaintiff. And if the administrator of Morris had sought to revive the judgment against Willis, the plea that there was a subsisting levy of goods, yet unaccounted for, must have prevented his second judgment.

U ntil the goods taken by the sheriff, in satisfaction of the judgment, are accounted for, we must presume the judgment satisfied; at least it cannot be revived. Because the payment in goods to the sheriff, is the same as payment to the plaintiff himself; and the levy should be presumed sufficient; unless the contrary appears.

But it does not follow, from this reasonable presumption, that Morris received more money than was due on his judgment: i. e. that he received, not only, the balance of 177 dollars, and interest, due him ; but also, received again, the 110 dollars, paid by Willis.

To go so far. would be to presume a fraud, or a mistake in Morris, without evidence of either ; that is, first, that there was a balance from the proceeds of the goods, which ought to return to Willis ; and secondly, that Morris received it,

Such a strained conclusion, from the facts, I should think, quite enough, to set aside the verdict. Butin the particular case, there is plain negative evidence, that ought to rebut, even the suspicion, that-Morris received any balance due to Willis.

If there was any balance remaining, it was due to Howland, the next judgment creditor of Willis. And according to the sheriff’s *246letter, introduced b3r Willis, there was little probability of there ve* mainingany balance, even for Howland.

Dunkin & Bubwsteii, for motion.

Eckhard, contra.

Filed 14th February, 1837.

What is the burthen, of the plaintiff’s case ? It is to prove, that Morris received, not only, satisfaction in full, but also 110 dollars, out of Willis’ money, a second time. But if the rule of presuming satisfaction, by reason of a levy, which is unaccounted for, could ■be extended so far as to justify such a conclusion, it would follow, that not only both Howland’s and Morris’ judgments-are satisfied, under the presumption of law ; but that all the partial payments, which Willis may have made, must be returned to him; unless the judgment creditors, prove negatively, that they have not received such payments, a second time.

Verdicts upon mere facts, are seldom set aside ; but when they would establish such *“ non sequitors,”*the opposite party have have some claims for an appeal to another jury. A new trial is, therefore, ordered.

J. S. RICHARDSON.

We concur,

JOHN B. O’NEALL,

A. P. BUTLER.

JOSIAH J. EVANS,