*259Tbe opinion of tbe court was delivered, October 9th 1871, by

Bender and Bender & Co., on judgments held by them against Joseph E. Foust, issued three executions on the 15th January 1869, amounting to about $2400, which were levied the next day, on the personal property of the defendant, valued at about $8000. On the 16th January, a judgment was entered in favor of Hyatt & Clark for $890, and on the 18th a fi. fa. was issued and levied on the same property, subject to the three prior executions, 9, 10 and 11, April Term 1869, being the Bender executions. On the 27th January, Hyatt & Clark’s judgment and execution were marked for the use of Jacob Spangler. On the 28th January Benders’ writs of fi. fa. Nos. 9,10 and 11, were stayed, and costs paid and satisfaction subsequently entered on the judgments. On the 30th January, Jacob Spangler released the still-house property from the lien of the judgment assigned to him.

Jacob Spangler, therefore, had under his execution property of Foust sufficient to pay his debt twice over. Spangler had conceived the idea of purchasing the judgment and execution of Hyatt & Clark, and paying them in barrels, but was anxious to be made safe, as the personal property might not reach, and Foust then gave his note to Spangler, with É. Sheffer as surety, for the sum of $800, payable at three months, which was the return-day of the writs of execution, as collateral security. The note is dated 26th January, and the assignment by Hyatt & Clark was made the next day.

By Spangler’s conduct, the levy under Hyatt & Clark’s execution was lost, and he then brought this suit on Foust and Sheffer’s note for $800, alleging that it was an engagement for a stay of execution till the time of the payment of the note. The question whether there was any such arrangement for a stay of execution was distinctly submitted to the jury, by the court helow, and was found against the plaintiff, who is concluded by it, unless there was some mistake in law made by the learned judge.

The 1st point presented to the court by the plaintiff’s counsel really covers his whole case.

“ 1st. If the note in suit was given by the defendants to the plaintiff, and accepted by him as collateral security for the Hyatt & Clark judgment, a,nd an execution and levy were pending thereon at the time, the presumption is that it was an engagement for a stay of execution till the time of payment of the note.”

The court said, “We cannot answer this point in the affirmative. It may be a circumstance amongst others tending to prove that there was an engagement for stay of execution, bu.t it does not constitute an absolute presumption of that fact. That there was such an engagement must be proved by evidence positive or circumstantial, but in either case it must be strong enough to *260enable the jury to say that such an e' expectation and belief will not be s no error in this, nor do we perceiv/ the court. cent was made — mere t.” There is clearly m the other rulings of

Judgment affirmed.