Allen v. Burks

7 Ky. Op. 444, 1874 Ky. LEXIS 133

• Court: Court of Appeals of Kentucky
• Decided: January 16, 1874
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The release in this case does not come within the rule stated in the case of J. H. Arnold v. O. P. Park, 8 Bush 3. There the debt was paid by the delivery of property, in lieu of money, an arrangement that the creditor could only make with the consent of the debtor. Here the payment was made in money, just what appellee was entitled to receive under and by virtue of this payment.

It does not matter that it was made in a county different from that in which the judgment was rendered, as execution might have been sent to any county in the state. It may be that the party from whom the money was borrowed loaned it upon the agreement of appellee to release the balance of his debt; but if this be the fact it is neither pleaded nor proved. Nothing* that can be tortured into a consideration for the release is developed by the record.

Garnett & Delaney, for appellant. W. Beard, for appellee.

The judgment must therefore be affirmed.