*296Opinion,
Mr. Justice Stebrett:One item of plaintiff’s claim, in the court below, was $88.32, “back money” for the boating season of 1884. As a defence thereto, the railroad company claimed that the money had been attached in its hands and duly paid over to the attaching creditor, in February, 1885. In support of that position, it gave in evidence a certified transcript of proceedings before William A. Lane, Esq., a justice of the peace of New Jersey, wherein William Whelan was plaintiff, and William Beatty, the plaintiff below in this case, was defendant. The transcript shows that in December, 1884, the plaintiff Whelan presented an affidavit to the justice, showing such facts as under the law of that state entitled him to a writ of attachment. The writ was thereupon issued “ against the effects, monejjs, rights, and credits ” of Beatty, the defendant therein, and the cause was so proceeded in that the “back money” due him was attached in the hands of the railroad company, and judgment was afterwards given against him for $100 and costs. A scire facias was then issued and served on the railroad company, garnishee, and, after hearing, judgment was entered against it, February 5,1885, for $87, and costs. Two days thereafter,. as the record states, the railroad company “paid into court, through Stanford Farrand, its own draft” “for $88.32, being the amount due from” it to William Beatty, defendant in that proceeding, and the same day the draft was paid over to Whelan, the plaintiff therein.
In the case now before us, the railroad company contended that the proceedings in attachment were a complete defence to the $88.32 item of plaintiff’s claim, and accordingly requested the learned judge to instruct the jury to that effect, but he declined to do so. In his general charge however, he said: “ The record of the attachment proceedings is conclusive on the plaintiff to the extent that it shows the existence of such proceedings,” a judgment therein, and paj'ment of that judgment, but it “ does not show that the judgment was satisfied. It shows that a draft was given to the justice of the peace, but whether that draft was ever paid or not is a question which you will have to determine. There is also testimony that the draft was indorsed over to William Whelan. Whether or not William Whelan accepted this draft in payment or full discharge of the *297judgment, and whether or not the draft was paid, are questions which I submit to you. I say, however, that you cannot go behind the judgment. That is conclusive. Therefore, the only question for you, in connection with the attachment proceedings, is, was the judgment in these proceedings paid by the defendant company ? If it was, then the plaintiff cannot recover for the $88.32. Tf it was not, then the attachment proceedings would not be a bar to the recovery in the present suit of the $88.32.”
In thus submitting to the jury the questions whether the check of the company was accepted as payment of the judgment against the garnishee, and whether or not the check was paid, we think the learned judge erred. Under the circumstances disclosed by the undisputed evidence, the presumption was that the check was accepted as payment, and that it' was in fact paid. There is no sufficient evidence to rebut these presumptions. Assuming that the garnishee did its duty in answering to the attachment, the effect of the judgment against it in that proceeding, was to render the company liable to Whelan, the attaching creditor, and, upon the payment of that amount, to discharge the company to that extent from its liability to Beatty, the defendant in the attachment. In other words, the payment of the judgment in the attachment proceedings operated as payment of so much of the company’s indebtedness to Beatty, and was therefore a defence to that amount of his claim against the company. The fifth specification of error is sustained. There is nothing in the remaining specifications that requires special notice. They are not sustained.
Judgment reversed, and a venire facias de novo awarded.