JAN. TERM, 1856. MCFARLAND V. SHIPP. the defendant ; without this, that *said receipt was intended to evi- P'42 dence indebtedness from tbe defendant to the plaintiff's intestate, &c. 3. Set-off. Issues being joined, to these pleas, as the record states, the cause was submitted to a jury, and a verdict in favor of the plaintiff§ for $124.85 damages. From a bill of exceptions taken by the defendant, it appears that upon the trial, the plaintiff introduced no 419 °MCFARLAND evidence except the receipt A bov e copied, and the defendant none. Where-V. upon, the defendant asked the court SHIPP AS AD. to instruct the jury as follows : 1st. An instrument of writing, that the defendant "That proof of the defendant having "received" of the plaintiff "one hundred and ten received money from the plaintiff's in— dollars," does not import an admission of indebtedness, aud will not, without other evidence, sup-testate, was not sufficient, of itself, to port an action for money lent. enable the plaintiff to recover. TVrit Error to Montgomery Circuit 2. That the legal import of the in-of C,ourt. strument offered in evidence, is evidence of payment of money due from orT. THOMAS HUBBARD, Cir- the plaintiff's intestate, unless it was -I-cult Judge. explained by other testimony." Flanagin, for the plaintiff: 2. "That the legal import of the instrument offered in evidence, is evi-ENGLISH, C. J. Thomas G. Shipp, dence of payment of money due from as administrator of Elias L. Hughes, the plaintiff's intestate, unless it was deceased, brought assumpsit in the explained by other testimony." Montgomery circuit court, against Which instructions the court refused William D. McFarland, on the follow-to give, but instructed the jury to re-ing instrument : turn a verdict for the amount men— "Received of Elias L. Hughes,Mount tioned in the receipt and the defendant Ida, February 2d, 1853, one hundred excepted, and brought error. and ten dollars. The receipt did not import upon its Wm. D. MCFARLAND." face any admission of indebtedness The declaration alleged that the re-from the plaintiff in error to the de-ceipt was given for so much money. fendant's intestate, or promise to pay lent and advanced by Hughes to Mc-him money. It was not, of itself, suf-Farland. It also contained a common ficient evidence to maintain the action, count, &c. and the plaintiff should have been re-The defendant filed three pleas. quired to produce additional testi-1. Non-assumpsit. rnony. 2. That the receipt mentioned in Had a witness testified merely that the declaration was given for money he saw Hughes deliver to McFarland, paid the defendant, by the plaintiff's on some occasion, $110, this would intestate, and was intended by the par-not have sustained a count for money ties as a discharge of a portion of in-lent (2 Greenl. Ev.,p. 98, sec. 112), and debtedness due from said intestate to yet this would be as much evidence of
VoL. 17 indebtedness as the receipt relied upon in this case. The court erred in instructing the jury to return a verdict in favor of the plaintiff, without additional evidence to sustain the action, and for this the judgment is reversed, and the cause remanded, with instructions to grant a new trial.
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