majority">XT T Hanna, J.—

Suit upon a note.

Answers, payment and set-off.

Reply, denying payment, and averring that the matters set up as a set-off had, long before the execution of the note, been settled and paid.

Trial by the Court, and finding for the plaintiff the amount of the note and interest.

All the evidence given upon the trial, was the note, which was .dated May 28, 1857, and a receipt, as follows:

“May 28, 1857. Eeceived of James Brown, two hundred and fifteen dollars in full, of book accounts up to this date.

“Peter Coon.”

The items of set-off pleaded, consisted of certain payments made by Coon, as replevin bail for Brown, on judgments, previous to the year 1851. The form of the reply admits that Coon had made such payments, and relies upon the subsequent repayment thereof by Brown to said Coon. Does the proof establish such repayment? is the only question.

The appellant insists that his offsets were not included in the terms of the receipt, nor presumed to be settled upon the execution of the note, because he was a judgment-creditor, under our statute, which gives a replevin bail a right to an execution against his principal, upon the judgment, to collect any amount he may have paid thereon for his use. 2 R. S. p. 186.

At the time Coon became replevin bail, to-wit, in, 1839 *151and 1840, and at the time he made the payments, as such, our statutes differed from that of 1852, in this, that the surety was required to obtain a judgment against his principal, before he could have an execution, which he might obtain upon motion in the Court where the original judgment was rendered. R. S. 1838, p. 235.—R. S. 1843, p. 956.

G. S. Orth and J. A. Stein, for the appellant.J. M. LaRue, for the appellee.

We are of opinion that, under these circumstances, the note and receipt together, raised a presumption of the payment of the matters set up in the set-off.

Per Curiam.

The judgment is affirmed with 10 per cent, damages and costs.

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