Moore v. Carey

The facts that have been admitted by the attorney for the defendant, together with the evidence that all the property of the defendant in the county was sold under the execution of 1868, together with the evidence offered to show that he has had no property in the county since the sale and has been a non-resident since the year 1870, the Court think are sufficient to give the case to the jury, for them to say whether these facts are sufficient to remove the presumption of payment.

We, therefore, refuse the non-suit.

The case was submitted without argument, under the charge of the Court:

(charging the jury.)

This is an action of scire facias on a judgment, brought by Benjamin J. Moore and William S. Hitch, administrators of Nathaniel Hearne, deceased, against George W. Carey, to revive a judgment, which was given by confession on the first day of July, A. D. 1863. The defendant in this case pleads payment. Twenty years having elapsed since the confession of the judgment, the presumption of law is that it has been paid and it is incumbent upon the plaintiff to prove to your satisfaction, that the judgment has not been paid. To sustain that, he has offered in evidence the fact that an execution was issued at the April Term, 1868, upon which his property was sold and the proceeds applied to the judgment. In addition to that, he has offered testimony to show that since that time he has had no other property in this county, and has been since 1870 a non-resident of this State.

These facts, and all the others you have in this case, you are to weigh and say whether from them you are satisfied that the judgment has not been paid.

*404On the other hand, this judgment is one that has been stand,ing since 1863, which was revived by the execution of 1868, since which time it seems no process has been taken to revive or keep alive the judgment. They might have proceeded during this time, to revive or keep alive the judgment, although the defendant was absent from the State, by two returns of nihil—that is, that he could not be found. You may take that fact into consideration— that is, their not having acted during this time—as evidence that the judgment has been paid, or they would otherwise have proceeded.

If from all the testimony in the case, as presented from the stand, and from the records offered in evidence, you find that the judgment has not been paid, then your verdict should be for the plaintiff. If you find that the judgment has been paid, then your verdict should be for the defendant.

Verdict for the defendant.