The proposition of law which the counsel for the defendant relies upon for a reversal of the judgment, is doubtless sound. It is this: If the defendant executed the note sued on under a mistake of fact, and for an indebtedness to the estate of Patrick Murphy when no such indebtedness existed, or gave it for a greater sum than the amount of such indebtedness, then he is entitled to be released from its payment, in whole or in part. The difficulty with this case is, to bring it within the application of this principle of law. The circuit court found upon the evidence, that the defendant was indebted to the plaintiff for the amount due upon the note. That is, we infer from the finding of facts, that the court below was satisfied, from all the testimony adduced, that there was no mistake as to the indebtedness of defendant to the estate, and that consequently there was no failure of consideration of the note. The bill of exceptions does not' purport to contain all the evidence, and we must presume that the finding of the court below was fully sustained by the proofs in the case. Even upon the testimony contained in the bill of exceptions, it is far from being clearly shown that the defendant was not indebted to the estate on book account to the amount of the face of the note. It is true, there is some evidence of the settlement and payment of all accounts in I860. But there is nothing very satisfactory in this evidence. It is wholly insufficient to establish the fact that the note was given for a supposed indebtedness where none existed. The defense that the note was without consideration ought to be sustained by evidence which leaves no fair or reasonable doubt upon the subject. The testimony in this case falls far short of this ; and besides, there might have been other evidence, not contained in the record, which tended to disprove the defense.
Under these circumstances it is manifest that the judgment of the circuit court must be affirmed. ■
By the Court. —Judgment affirmed.