delivered the opinion of the court.
This was an action of debt, founded upon the writing obligatory of the defendant in the court below to the plaintiff. The pleas were payment, former recovery, and accord and satisfaction ; upon all of which issues were joined.
The defendant below introduced, as part of Ms evidence, a transcript of a judgment recovered upon the writing obligatory on the 13th day of May, 1846, in the circuit court of Morgan county, and State of Alabama, upon proceedings commenced by attachment against the estate of the defendant, on the ground that he was a non-resident of said State. The writ appears to have been levied upon certain slaves of the defendant; and nothing appears in the record, showing a disposition'of the levy, or an appearance by the defendant. The judgment appears to have been a general one, in the usual form, against the defendant, and a writ of fieri facias appears to have been issued thereon, and returned by the sheriff of Morgan county, nulla bona.
The court, at the instance of the defendant below, gave the *629following instruction: “ That the levy of an attachment upon goods and chattels of defendant, and the levy not appearing to be disposed of in any way, is in law a primé facie satisfaction of the debt for which the attachment issued,” &c. At the instance of opposing counsel, the court thus qualified this instruction: “that the sheriff’s return of nulla bona upon the fi. fa. emanating upon the judgment in the attachment suit, &c., is competent evidence for the jury to consider in that behalf.”
If the judgment in Alabama is to be treated as a general judgment, as its language and form clearly indicate, against the defendant, then it sustains the plea of former recovery, and the judgment in the court below should have been for the defendant. If, on the other hand, it is only to be treated as a judgment in rem against the property levied on by virtue of the attachment, then it must be regarded, till the contrary is shown by the other side, as satisfied by the levy and judgment condemning the property. In the present controversy, therefore, it is wholly immaterial in which light the judgment in Alabama shall be viewed. In the one case it clearly establishes that the plaintiff had no right to prosecute an action on the writing obligatory; and in the other, if the right to prosecute the action ever existed, the proof established a primé facie satisfaction of the debt.
The verdict and judgment were, therefore, clearly wrong, and should have been set aside on the motion for new trial.
The qualification to the instruction only submitted the return on the fieri facias to the jury. This was written evidence, and should have received a legal construction, if it required any from the court. The return, however, was wholly insufficient to rebut the case made out by the defendant below. He showed an attachment levied upon his slaves to satisfy the same debt, and the record showed no disposition of the levy. This proof was sufficient to create a presumption that the debt was satisfied, and the plaintiff found it important to introduce evidence to rebut the presumption, which he could only do by showing a disposition according to law of the property levied on by the attachment, as it was from the levy thus made that the presumption of satisfaction arose; and the opposing proof should *630have been directed to the fact creating the presumption. Did the return on the fi. fa. tend to show a disposition of the property taken under the attachment, or create any presumption whatever that it had been replevied ? Certainly not. It could not, under any view, Be ranked higher than secondary evidence, as the law had appointed a mode in which the property had to be replevied, and the evidence, which would have been the result of this mode of proceeding, was the best which the nature of the case admitted, and should have been produced, or its absence accounted for.
Judgment reversed, new trial granted, and cause remanded.