#### Charles H. Martin v. John P. Rumsey.

Actions—Money Had and Rectived—Weight of Evidence.

In an action for money had and received, where the trial was by the court, it is held: That the evidence fully supported the judgment for plaintiff.

[Opinion filed September 20, 1890.]

Appeal from the Circuit Court of Fulton County; the Hon. J. C. Bagby, Judge, presiding.

Messrs. Gray & Waggoner, for appellant.

Messrs. Abbott & Carlin, for appellee.

Pleasants, J.

The declaration here was in assumpsit for money had and received to plaintiff’s use, and the plea was the general issue. Judgment, on trial by the court, for the amount claimed, and appeal taken by defendant.

It is conceded that in September, 1884, appellant received money of the appellee to pay a note of the latter to one Banere, on which appellant’s father was surety; and that in 1888 the administratrix of Banere sued appellee on that note, and on a trial at which both these parties were present, recovered judgment, which appellee paid. Until he was so sued and the note thus produced, he supposed it had been paid by appellant. This suit was brought against appellant to recover the money he had received for that purpose, and the defense was that he had in fact so paid it.

There is no question of law in the case; and as to the evidence, which on the part of the defendant was quite remarkable, it is sufficient to say he stated that he could not swear positively, but only according to his best recollection, *212that he did pay it. The circumstances to which he testified make his inability to he positive so singular that the court could not well regard his testimony as sufficient to overcome the presumption arising from the possession of the note by the administratrix of the payee, and there was nothing shown which materially aided him.

Judgment affirmed.