This action was commenced on February 4, 1851, upon a judgment recovered in March, 1831, for the sum of $531,47, debt and costs. The defence was alleged payment. Evidence was introduced tending to prove, that Mowry was the principal on the note, which was the cause of action in the first suit, and the other defendants were his sureties.
*293The defendants, as it appears from the exceptions, attempted to establish two propositions. One was, that before the recovery of the judgment, the plaintiff had received moneys belonging to Mowry, nearly or quite equal to the amount of the judgment; and the other was, that notwithstanding the judgment was taken for the full amount of the note and costs, instead of the execution thereon being enforced as it is contended that it might have been, it was suffered to remain, in consequence of- a valid agreement, that the moneys so received, "should be applied to the satisfaction of the judgment and execution. Evidence was introduced, relied upon by the defendants, in proof of these propositions; and the instructions complained of, were given to the jury, not as authorizing the impeachment of the judgment collaterally, but for the purpose of presenting to them the question, whether there was a consideration for the agreement alleged to have been made, that payments, which should have discharged the note, or been indorsed thereon, were actually applied to the satisfaction of the judgment after its recovery. The jury were instructed, that if they should find, that the defendant Mowry was really the principal in the note, and bound to pay it, as between him and the other makers; that he had made payments, which were to have been applied to the note, but which were not so allowed, they would consider, whether the parties had not subsequently adjusted this matter between themselves ; that, in this connection, the facts, if proved, that attachments had been made on the original writ, that no proceedings were had upon the execution obtained, that the other parties were solvent, and that during much of this time, Mowry was solvent, were facts proper for their consideration, with other facts in the case.
In these instructions no imperative rule of law was given to the jury to give weight to the delay of the plaintiff to enforce his execution, if he could probably have done so successfully, but they were allowed to consider the effect due to these facts, in connection with the other evidence before them. The jury could not have understood the Judge to have held, *294against his positive statement to the contrary, that payment of a judgment can be presumed short of twenty years; but only to have allowed them to consider the circumstance of having omitted to enforce his judgment against those inducements, which ordinarily influence creditors, when no arrangements had been made for a settlement thereof, connected with the facts, attempted to be established, that he had in reality received payment of his debt, before the suit, and had agreed to allow the payment on the judgment. The admission of the evidence, for which it was introduced, and the instructions to the jury are free from error.
Exceptions overruled.
Shepley, C. J., and Rice and Hathaway, J. J. concurred. Tenney, J. —If the instructions had evidence for their basis, the jury were to judge of all the facts, under the direction of the Court; and their finding cannot be disregarded, simply because the evidence was weak, and such as would have inclined the Court to believe, that it might have come to a different conclusion.
Positive evidence was introduced, that the plaintiff had received moneys belonging to the defendants, sufficient to cover the amount of the judgment now in suit. When the parties were together in May, 1851, the books and papers of both parties being present, and to some extent examined, the plaintiff admitted, that he had received from the Rice and the Wm. Clark note about five hundred dollars, and also one hundred dollars by balance of the Moon receipt, upon the note on which judgment was rendered; that he had agreed, that these sums should go in payment of the joint note, (which is understood to be the same,) and if they had not been so allowed on the note, they should go towards the execution ; and the plaintiff thereupon remarked, being some excited and angry, “ if that’s allowed, as I have received it, towards the joint note, you will owe me $200 or $300 on the general account,” which Mowry denied. This evidence, if true, when *295considered alone, and unconnected with other circumstances, relied upon in proof of payment, were insufficient to authorize the jury to find, that payment had been made from moneys received after the recovery of the judgment; but it certainly tends strongly to show, that it was recovered, when little or nothing was due upon the note, and that it was wrongfully or improvidently taken. And from the facts, that no means were put in operation for almost twenty years, for its collection, and no satisfactory explanation of this delay offered, it is not strange, that the jury should have done the plaintiff the justice to infer from all the facts together, that he had really done after the recovery of the judgment, what he frankly admitted he had agreed to do before, in reference to the note. If the jury erred, the error is not so palpable, as to authorize the Court to disturb the verdict. Motion overruled.
Shepley, C. J., and Rice and Hathaway, J. J., concurred.