35 S.C. 178 | S.C. | 1892
The opinion of the court -was delivered by
This is an action of debt on judgment, commenced 22nd December, 1890. The answer pleads payment. No reply was filed. It follows that any testimony in rebuttal or avoidance of the plea was admissible. There was but one conflict in the testimony, viz., defendant testified that he gave up to plaintiff her note in payment of the judgment sued on and took her receipt therefor, and plaintiff testified that there was no such transaction. The jury accepted defendant’s as the true version and found a verdict for defendant.
To this court, on this appeal, the facts are that defendant, as executor of R. M. Puckett, sold to plaintiff, on 1st January, 1862, a negro for $800, and took her note therefor, bearing interest from day of sale; that afterwards Nancy L. Vance and Henry C. Puckett called defendant to account, in the Probate Court, for his executorship without making any of the other legatees parties; that that suit resulted in a judgment against defendant, 18th December, 1873; that each of five legatees (among whom the plaintiff in this action is named as one) be paid $482.59 by defendant. In the statement for settlement defendant is charged with plaintiff’s said noteat $266.66; that no part of the note was in fact paid ; that in pursuance of an agreement to that effect, on 1st May, 1875, defendant gave to plaintiff her said note in payment of the amount due by said judgment of the Probate Court and took her receipt, not under seal, acknowledging such payment. Defendant was held entitled to open and reply in evidence. Judgment was rendered for defendant, and plaintiff appeals.
We do not understand the judge to have charged that anything “short of payment could discharge the liability” of defendant for the debt sued for. Plaintiff's 2d exception is overruled. The 9th and 10th exceptions were abandoned at the hearing.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.