Campbell v. Hays

DEBT by the appellants against the appellee upon a note executed by Hays in favor of Campbell, in the lifetime of the latter, to-wit, on the 12th of September, 1846, for the payment of 100 dollars one day after date. The declaration also contains the common counts for money had and received on account stated, &c. Pleas; the general issue and payment, with notice of set-off. There was a trial by a jury, and a judgment in favor of the defendant for 77 dollars and 23 cents. We think this judgment was not warranted by the evidence. The note described in the declaration, and produced upon the trial, was prima facie evidence of its settlement at the time of its date, and the only claim distinctly proved, which could properly constitute a set-off in favor of the defendant, was one for boarding said Campbell about one year, which' the witness stated to be worth [548] about 100 dollars. There being no evidence to remove the presumption of settlement, the jury should not have estimated any claims of the defendant which accrued before ¿ate of the note.