#### JOHN AND ISAAC NULL, TO THE USE OF JOB WORTH vs. WILLIAM H. MOORE & AL.

The plaintiffs placed hr the hands of one A. a judgment to collect against B. Afterwards A. paid the amount of the judgment to the plaintiffs, but at the same time said.he had received no part of the judgment from B. and the plaintiffs told him he might lake the judgment and use it as his own ; Held, that i£ this was a payment by A. without the-authority of B1.,. it was au officious payment by A. and' eonld not protect Bl against a suit against him on the judgment

Held, secondly, that although the statement of A., which was introduced as-evidence, was in writing, yet it was proper to leave it to the jury, whether A. paid the judgment as agent for B., or whether the transaction was not a purchase by A from the plaintiffs.

The eases of Sherwood v. Collins, 3 Dev. 381, and Blackledge y. Clark ¿i Ire. 394, cited and approved.

Appeal from the Superior Court of Law of Surry County, at the Fall Term 1849, bis Honor Judge Cat.d-' well presiding.

This is a suit on a justice’s judgment for about thirty-five dollars j and the controversy turned on the question, whether it had been paid by one Wright, a deputy sheriff, or by him purchased ?

The plaintiff, Isaac Null, made the following statement, in a communication addressed to J. W. Brower, one of the defendants, in August 1849

*325“Sir : — The note of hand I purchased .of you, against William H. Moore, was, I think, in the year 1842, and according to your request I immediately placed it in the hands of Thomas B. Wright, deputy sheriff, for collection, some time, I think, in the year 1843. And the said Wright afterwards paid over said debt and interest to me and took up his receipt, that he had given me for the collection of said debt, but never mentioned, that he was paying said debt out of his own funds. I never traded or transferred to any person whatsoever, neither have I ever authorised any person to collect said debt,- since the said Thomas B. Wright paid me the same. The amount of the debt was between thirty and forty dollars. It is the only note I ever bought of you on William H. Moore, and as I have long since received the same, I have no claim or claims against you in any shape whatever.

“ISAAC N. NULL.

“Teste, E. Banner.”

The said Wright’s deposition was taken, and he deposes as follows:

Question by plaintiff’s agent. Did you, or did you not, have a judgment against the defendants in favor of John and Isaac Null in your hands for collection, for the sum of thirty-five dollars or thereabouts ? If so, state whether the defendants paid that judgment ? or if they did not pay it off, what was done with said judgment 1

Answer. I had such a debt in my hands for collection, I think nearly about that amount, against the defendants, and in favor of John and Isaac Null, and on a settlement with Null I paid him off that judgment. I told him, that I had received no money from the defendants on said debt. Null then told me, that I could then take the judgment and use it as my own, and I then afterwards let Job Worth have it, (the judgment,) for wliich he paid me the full value, and neither of the defendants ever paid me any thing on said judgment. Tuos. B. Wright.

*326The said deposition was taken on the 4th of June, 1849. Upon this testimony it was insisted for the plaintiffs, that the said judgment had been purchased from the plaintiffs by Wright, and was not, therefore, extinguished.

For the defendants it was insisted, that, according to the statement made by the plaintiffs, and according to the testimony of Wright, taken alone, it had been paid off by Wright, and not by him purchased. And the Court was moved by the defendants’' counsel to charge accord* ingly. The Court declined so to charge ; but told the jury, that the statement made by the plaintiffs proved a payment, but it was a question for them to decide, whether the testimony of Wright proved a purchase or a payment.

The jury found for the plaintiffs ; and a rule for a new trial being refused, the defendants appealed.

Morehead, for the plaintiffs.

Boyden, for the defendants.

Wash. J.

The case presents but one question for the decision of this Court. Were the instructions, asked for by the counsel of the defendants, such as ought to have been given ? If so, the presiding Judge erred in refusing them and there ought to be a venire de novo. It appears from the case, that the plaintiffs were the owners of a promissory note executed by the defendants, and which they placed in the hands of Thomas B. Wright, deputy sheriff of the County, for collection. Judgment was taken upon it, and in a settlement between the plaintiffs and Wright, the amount due upon it was paid by the latter. Whether this latter transaction between the sheriff and the plaintiffs was a discharge of the judgment, or a sale to the former, is the matter in contest. The action is upon the former judgment. On the part of the plaintiffs, it was contended, that Wright was a purchaser of the *327judgment, which, therefore, was not extinguished. By the defendants, it was contended, that the payment of the money by Wright was a discharge of it. A statement in writing was made by Isaac N. Null, one of the plaintiffs, in which, after acknowledging the payment by Wright, he says, “but (he) mentioned, that he was paying the said debt out of his own funds. I never traded or transferred to any person whatever, neither have I ever authorised, any person to collect said debt since,” fyc. The deposition of Thomas B. Wright was taken on behalf of the plaintiffs. He states, that, “on a settlement with Null I paid him off that judgment. I told him I had not received any money from the defendants on said debt. Null then told me, I could take the judgment and use it as my own, and I then let Job Worth have it, for which he paid me its full value, and neither of the defendants ever paid me anything on said judgment.” The defendants’ counsel asked the Court to charge the jury, that, “according to the statement made by the plaintiffs, and according to the testimony of Wright alone, the judgment had been paid off by Wright, and not purchased by him.” The Court declined so to charge, but told the jury, that “the statement made by the plaintiffs proved a payment, but it was a question for them to decide, whether the testimony of Wright proved a purchase or a payment.” Of the first branch of the charge, the defendants cannot complain— they got the full benefit of what they asked on that point. His Honor could not give the instructions, as respected the deposition of Wright, According to that testimony, his payment of the money was an officious one. As such, it afforded no protection to the defendants against the judgment. A plea of payment by a stranger is demurrable. Sherwood v. Collins, 3 Dev. Rep. 381. Wright was a stranger to the judgment. Neither would such a payment have conferred upon him any legal interest in it or claim against the defendants for the money. But it is *328further contended by the defendants’ counsel, that the testimony of Wright being in paper, the construction of it was a matter of law, and that it was error to leave it to the jury. Wright, in his deposition, does not swear, in so many words, that he had purchased the judgment, but he stated circumstances, from which, if true, a reasonable presumption might be inferred, that a sale to him did take place. In such case it is not error in law, for the Court to submit the matter to the jury to be passed on by them, although it might think the jury would be well justified in not inferring the fact of a sale. Blackledge v. Clark, 2 Ire. 394. The jury might, indeed, have refused to find a sale and purchase, but the circumstances detailed by Wright certainly tend to that conclusion. In the language of the Court in the case last cited, ‘'they raise some suspicion or presumption,” that such was the fact. Wright was the agent of the Nulls to collect the money, and if, at the time he paid the money, he did not purchase the judgment, he knew, as before stated, he would be entirely in the power of the defendants, and it would be at their option to refund the money or not. The presumption is strong, that he did not intend to make them a present of the money. The presiding Judge, therefore, com. raitted no error in submitting to the jury the construction of his testimony. Nor does it make any difference, that his testimony was in writing — the same rule would apply to it, as if he had been examined before the jury, and had used the same language.

Per Curiam.

Judgment affirmed.