¶1The proof of payment by the defendant, of the judgment recovered upon the note in which the intestate was the surety for the plaintiff, was not admissible *560on the trial below, to show a payment or a set off against the plaintiff’s demand. In point of fact it did not amount to the former, and as a set off was not available under an issue framed previous to the time the judgment was satisfied. 'True, the evidence does not explicitly show that the issue was actually joined, when the money was paid by the defendant, yet we must intend this to be so, as the statute requires the pleadings to be made up at the appearance term, and a party is not permitted afterwards to plead, except under special circumstances.
¶2But the bill of exceptions informs us, that this testimony was offered to repel the inference of an implied contract on the part of the intestate to pay the plaintiff for board. We are unable to perceive upon what principles of reasoning such a presumption can be indulged. Can it be predicated of the mere fact of suretyship, or of the payment of the debt, or both? Certainly not of the former; for the signing of the note only indicates that the intestate confided in the plaintiff, or was willing to assist him in obtaining a credit. The payment of the money was made after the intestate’s death, under legal coercion; and consequently proves nothing as to the circumstances under which the intestate lived with the plaintiff. We are then, constrained to conclude that the testimony was improperly admitted, and if the purpose for which it was adduced was announced, as we must suppose it was, in the hearing of the jury, its admission, after objection made, was well calculated to mislead them.
¶3Under appropriate issues, all the evidence recited might perhaps be admissible ; but we must consider the cause as presented by the record. In this view the judgment must be reversed, and the cause remanded.