338 CASES IN THE SUPREME COURT 'LITTLE BOCK. Jaa'y 1839 ....onewsro HESTER JOHN B. HESTER against MURPHY. BENJAMIN MURPHY. Emma to Conway Circuit Court. - In action of debt on writing obligatory, evidence that the plaintiff had borrowed a wagon ol* the defendant, which was to have been returned in four or five days, is not admissible to sustain a plea of payment. TRAPNALL & COCKE, for plaintiff in error. DICKINSON, Judge, delivered the opinion or the court: This was an action commenced by Hester against Murphy,in the justice's court, founded upon a writing ob/igatory. Judgment was entered in favor of the plaintiff; from which Murphy appealed. On the trial de novo in the circuit court, .Murphy pleaded payment, and the only evidence offered in support of his plea, was "that about the first of November or December, 1833, Hester borrOwed . of Murphy, a wagon, worth about eighty dollars, which. was to have been returned in -four or five days, but witness did notireow whether the wagon had ever been returned or not." The counsel for Hester moved the court to etelude this testimony, upon the ground thatit was inappropriate under the plea, because, if the wagon was not returned; Hester was responsible in cost, but not in contract; which motion was overruled by the, court, and judgment rendered in favor of Murphy, for seventeen dollars, to reverse which, Hester now brings up the case by , writ of error; the only question presented is, whether the evidence was proper Under the plea of payment. We have looked into the cases, and can find no authority founded upon either reason or justice, by which a party would _ be permitted under this plea, to give in evidence a claim wholly . urieertflin and unliquidated; and although the comrrion law rule has bnen 'somewhat changed by our statute, by permitting in some instances;counter demands to be off se.' under this plea, -yet it is only where the plaintiffis indebted to the defendant by bond, bill,note, or book accOunt, or other contract; MeCampbell's Dig. p. 371; which evidently and clearly refers only to cases where there is aa actual indebtedness arising ex contradu, not partaking of the character of torts. The judgment: of the circuit court of Conway county must there- - fore be reversed . , a . nd .this case remanded for further preeeedings to be had therein, not inconsistent with -this cipinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.