
    
      John Hunter vs. William Campbell.
    
    C. being indebted beyond his means of payment, surrendered all his property to the sheriff, which, with the consent of the creditors, was sold on a credit. The property was bought in by an agent of the creditors and re-sold at advances, C., being allowed the benefit of them. B., the agent, paid off sundry judgments against C., in favor of one R., one of which C. alledged had been paid before in a settlement between himself and R,; and if so, there was a fund in the hands of the agent sufficient to pay the plaintiff’s debt. To prove this fact, C. offered a letter from R. to himself anterior to the sales by the sheriff, acknowledging satisfaction. — Held, that this letter was admissible in evidence to shew that the judgment had been paid.
    
      Before N’Neall, J., York, Fall Term, 1842,
    This was an action of debt, on a judgment for $517 50, with interest from the 5th of November, 1820, and $17 38 costs. The judgment was signed 5th November, 1821, the writ was issued 30th September, 1839. The defence was payment. The defendant was indebted to John Robinson, this plaintiff, and others. Being unable to pay them all, he surrendered all his property to the sheriff, and by the consent of the creditors, it was sold on a credit. The defendant alledged that Capt. John Blair was the agent of all the creditors, and that Wm. D. Henry was associated with him for all except Robinson. This was fully proved by Henry; but Capt. Blair proved that he himself was agent alone for Robinson. Henry proved that a considerable part of the property was bought in by himself and Blair, as agents for the creditors, and that it was re-sold by their consent at considerable advances by Blair, and that the defendant was to have the benefit of the advances. Blair proved that he bought as the agent of Robinson alone, sold, and by Robinson’s directions allowed the defendant the advance, which, with some sales made by the sheriff, extinguished Robinson’s debts, and left in his hands about $505 99 3-4, which he applied to the payment of balances due to him by Campbell. The gross sum received by Capt. Blair was $6,947 74 3-4. He paid to Robinson $6,225 84.
    Robinson’s debts, as Capt. Blair settled them, were, 1st. a judgment in favor of Wm. H. Gilliland, assigned to Robinson, $2,010 78, with interest from 10th March, 1820. 2d, a judgment in favor of the same, and also assigned to Robinson, for $1,155 90, with interest from 10th of March, 1820. 3d, a judgment in favor of John Robinson, for $2,500, with interest from 5th January, 1821. The defendant alleged that this last judgment was paid before, in a settlement between himself and Robinson. To prove this fact, he offered a letter from Robinson to himself, dated 27th August, 1823, (before the Sheriff sales) in which Robinson stated that he had applied the proceeds of the defendant’s cotton to the payment of the judgment himself ys. Campbell, and that he should direct Clendenin to enter satisfaction upon it. The introduction of this letter was objected to, but I thought it must be received, in order to enable the jury to judge whether there was a fund sufficient to pay the plaintiff’s debt in the hands of his agent.
    The case depended very much upon the question, whether Captain Blair was the. agent of all the crediditors, including the plaintiff; if he was,-then there was an abundant fund to pay this debt, which was next in point of seniority to Robinson’s.
    The jury were also advised, that 20 years would raise a presumption of payment. That here there was not quite 18 years; but even that time, connected with other circumstances raising a belief of payment, might justify theni in finding the judgment paid..
    The jury found for the defendant; the plaintiff appealed on the annexed grounds:
    
      1. Because his Honor permitted the defendant to offer in evidence a.letter from John Robinson to himself.
    2. Because there was no proof of payment made by the defendant on the judgment sued on.
    3. Because from the circumstances of the case, the jury were not authorized to presume payment.
    Williams & Allston, for the motion. Witherspoon & Dawkins, contra.
   Curia, per

Butler, J.

The only serious question in this case is, whether the letter from Robinson to defendant, was properly admitted in evidence. For as to the other questions of fact, they have been disposed of by the verdict of the jury¡ The letter from Robinson to defendant was received by the latter, and is his voucher that the debt had been paid, as much so as if Robinson had executed a formal release, or had given him a receipt in full. It cannot be regarded as the isolated declaration of Robinson, made to a third person, and which the defendant might not have assented to, as a deliberate settlement of their demands. In the application of the funds, the defendant might have been interested to repudiate the acquittance of Robinson; but so soon as the letter was delivered to him, might it not operate! as a relinquishment of the debt, for valuable consideration '? And in this respect the paper should be regarded, rather like the act and deed of Robinson, than an irresponsible admission of a third person. Why is it, that it is our every day’s practice to allow a receipt of a third party, in a collateral question, to be given in evidence, without calling the party himself'l If a note were to come collaterally in question, in a contest between strangers to it, a receipt on the back of such note, made by the holder, against his interest and with the consent of the maker, could be proved without calling the party making it. Such a receipt, however, not assented to by the maker, might not be evidence, as possibly it might have been made to the prejudice of the maker’s rights, and not against the interest of the holder. When parties exchange receipts, or one party gives another a receipt, a debt is thereby extinguished, not by the declaration of one, but by the consent of both; as much so as when the debt was originally created. One is the extinguishment, and the other the creation of a contract, and they should be regarded as constituting the act of both parties, rather than the disconnected declarations of each ; and, as such, may be proved by the evidence of third persons, establishing the genuineness of the transaction. And would not such evidence be of as high a character as that which could be given by one of the parties to the paper % What more could Robinson have said in this case, than that he wrote the paper, and that it was received by the defendant. The defendant, by producing the letter, shewed the same thing; and the paper speaks its own contents with more certainty than the parties to it could do.. This then is not like a mere entry in a book, or the declaration of a third person, who may be examined in court. But it is producing an instrument binding on two, as their own act and deed. In this view then (and I think the case is fully susceptible of it,) there can be no objection, to the evidence complained of. But in collateral questions, is it not every day’s practice to admit even secondary evidence; such as recorded deeds, receipts by parties in the sheriff’s office, probate of deeds before justices, <fec., not always to establish rights under such papers, but that they exist, and that third persons are not at the time of trial claiming under them. Well, in this way the defendant proved the existence of a receipt, and that Robinson had not claimed against it, leaving the inference to be drawn that the judgment had been paid, as explained by the letter. And another view may be taken of the letter, and that is, that Hunter never could have disputed it against the understanding of the original parties between whom it passed. As to him and all the world, it was conclusive, so long as the parties interested were satisfied. So long as they were satisfied, no one else had any right to complain. A majority of the court think this motion should be refused. Motion refused.

Richardson, O’Neall and Earle, JJ., concurred.

Wardlaw, J. doubted as to the admissibility of the letter.

Evans, J. dissented.  