Vaughan v. Marshall

1 Del. 604

• Court: Superior Court of Delaware
• Decided: July 1, 1858
• Status: Published

Opinion

The Court,

Gilpin, Ch. J.,

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 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.