The opinion of the court was delivered, by
Read, J.This case has been in this court before, and is reported in 3 Wright 127. The court had ordered a judgment to' be satisfied and discharged of record, without opening it or directing an issue to determine whether or not it had been paid. We reversed this order and remitted the verdict, with directions to order an issue to try whether the judgment had been paid. This was done, and, after two trials, a verdict was rendered for the defendant. There is nothing in the exceptions to the rejection of evidence, and the only question for us is, whether the court committed any error, in matter of law, in their charge to the jury. If the jury erred in weighing the evidence, that could be only corrected by the court below upon a motion for a new trial, and cannot be urged here.
The evidence of .payment was partly written and partly oral, and was necessarily submitted to the jury, and the plaintiffs’ argument is really that the jury made an error in finding for the defendant. Their argument also supposes that if the defendant had immediately carried the order to Mr. Jones, he would have satisfied the judgment and entered judgment on the $770 judgment-note. The drafts at sixty and ninety days for $1000 each, with the $20 cash, were clearly taken in payment, and accepted as satisfaction, and immediately discharged so much of the original judgment for $5000 which had been reduced at the settlement of the 9th of September 1859 to $2800. If this be so, it would seem natural that the judgment-note for $770, for the balance, at four months, should also be accepted at the same time in payment and satisfaction. At all events, there was'evidence from which the jury might draw such a conclusion. The court therefore laid down the law correctly when they said to the jury, “ If the jury find from the evidence that the single bill for $770 was received by the plaintiffs in payment of the balance due upon their $5000 judgment, their verdict ought to *478be in favour of tbe defendant. -Rut if, on tbe contrary, they find from the evidence that the single bill was not received by the plaintiffs in payment of the balance due upon their judgment, then their verdict ought to be in favour of the plaintiffs (as the issue is drawn) for the balance due upon that judgment, which would be the $770, together with interest from the date of the single bill, the 9th of September 1859.”
This was the pith and marrow of the whole case, and the verdict sustained by the court after this long litigation should finally settle the dispute.
Judgment affirmed.