
    *322] *Joseph Patterson vs. Thomas Tucker.
    Whore the subscribing witness to an instrument denies his hand writing or attestation, other evidence of the execution of the instrument may be received; and proof of the hand writing of the subscribing witness by other persons acquainted therewith, will in such case, be sufficient to authorize the reading of the instrument to the jury.
    This was a writ of error to the Court of Common Pleas of the county, of Somerset. The following is the statement of the case agreed upon by the counsel of the parties, viz: This cause was tried at the Somerset Pleas, in the term of January, 1824, upon the following pleadings : — The declaration contained several counts. The first on a promissory note from the defendant to the plaintiff, dated on or about the first day of April, 1817, for one hundred dollars, payable at twelve months, with interest, and which note the plaintiff alleges that the defendant afterwards, and before the commencement of the suit, without having paid the same or any part thereof to the plaintiff, and against his consent, cancelled, tore up and destroyed.
    2d. Count for work and labor.
    3d. Count for other work and labor with a quantum meruit.
    4th. Count for money lent and advanced, paid, laid out and expended.
    5th. Count for interest.
    6th. Count on account stated.
    
      The defendant pleaded. 1. The general issue. 2d. A general release from the plaintiff to him made after the issuing of the summons and before the return of the same, to wit, 17th February, 1823.
    To the second plea the plaintiff replied that the release was not his deed; and that it was obtained from him by imposition and management, while he was intoxicated and under the influence of ardent spirits, administered to him by the defendant for the purpose; and that it was obtained by fraud. The jury found a verdict in favor of the plaintiff for the sum of one hundred and forty dollars damages, and six cents costs. The following is a copy of the bill of exceptions sealed at the trial and sent up to the Supreme Court.
    BILL OP EXCEPTIONS.
    This cause came on to be tried on this eighth day of January, in the year of our Lord one thousand eight hundred and twenty-four, ^before the judges of the inferior [*323 Court of Common Pleas in and for the county of Somerset, on the issues joined between the parties, and a jury duly impanelled and sworn to try the said issues, and thereupon the plaintiff in support of the issues joined, offered in evidence Peter Welsh, who being duly sworn, testified as follows : That he was acquainted with Joseph Patterson and Thomas Tucker, the defendant and plaintiff in this action— that Joseph Patterson is a tanner, and Tucker worked in his employ in the years 1816, 1815 and 1814. In the year 1817, he thinks in April, 1817, and on a Saturday evening, witness was at the house of Patterson, the defendant, and the plaintiff was also there. Patterson told the plaintiff if he would come and work for him again, he would settle with him — Patterson made very free with his whiskey. The plaintiff, Thomas Tucker, is fond of whiskey. The parties then settled. Patterson then kept his book lying on the table in the entry. Witness went with the defendant into the entry to look at the books, and at the account of Tucker, the plaintiff. The account of the plaintiff for work was at eleven dollars per month. Patterson said, d — n him, I don’t allow him eleven dollars a month, but by one and another .jawing I shall be obliged to allow it to him. Patterson then struck a balance and there was due to Tucker one hundred and twenty dollars. Patterson then closed the book and went out of the entry into the front room. He paid the plaintiff also, at the time, twenty dollars in two ten dollar bills, and gave him his note for one hundred dollars, payable, he thinks, in twelve months after date. He is sure of the amount of the note. Patterson said we will leave this note in Welsh’s hands, to which Tucker replied, I would as leave Welsh should keep it as myself, and witness then took the note himself. The Wednesday evening after, Patterson came to the house of witness and asked him for the note. They took a candle and went into another room together alone. Witness handed Patterson the note who took it and tore it in pieces, and said d — n him, now let him get his money as well as he can. They then went into the room with the family. The said Peter Welsh, being cross examined by the counsel for the defendant, further testified that he thinks that the note was payable to Tucker alone and not to order — to the best of the knowledge of the witness it was payable without defalcation or discount — but don’t know whether payable with interest or not — thinks it likely *324] it was, as the money was *all due. The note was destroyed within three or four days after it was given ; there never was any article of agreement between the parties put into his hands for safe keeping, nor any other paper but the note in question. The note was given for the balance due on the books of Patterson to Tucker; thinks that he first mentioned the destruction of the note to Patterson’s relations. Don’t remember whether he told it to Tucker, the first time he saw him afterwards. Tucker worked at the time above mentioned with Samuel King— witness thinks Tucker was not sober the whole of the time •when the settlement was made. Witness did not object, however, to the settlement going on. Witness lived at that time not far from Patterson — knows of no other settlement with Tucker, but that one — Patterson is by marriage a relative of witness — don’t remember that he called on Mr. Hamilton respecting the present suit, before Mr. Hamilton wrote witness a letter on the subject. There has not been for some time a good understanding between wdtness and the defendant. A receipt purporting to be a receipt in full from the plaintiff to the defendant for the sum of twenty dollars for tanning done by the plaintiff for the defendant, dated 11th October, 1817, purporting to be signed Thomas Tucker, his mark, and witnessed by Peter Welsh, was produced by the defendant’s counsel, and the witness being asked whether the name Peter Welsh, as a subscribing witness to said receipt, is the handwriting of him the witness —the said witness testified that he did not believe the same to be his hand writing.
    The plaintiff having rested, the' defendant offered in evidence Ijube Nevius, who being duly sworn, testified as follows: That Joseph Patterson, the defendant, called upon him at a religious meeting on a Sabbath evening, sometime during the last winter, to go with him to New Brunswick on business of importance — he. did not mention his business till they got into the sleigh. He understood then, that it was to see Tucker, the plaintiff, about this suit. When they reached New Brunswick, Patterson went to Runyon’s tavern, and witness went to see Tucker — it was in the morning — they had not breakfasted. Witness found Tucker at home — Tucker was perfectly sober. Witness requested Tucker to walk with him to Runyon’s to seo Mr. Patterson — Tucker consented, and on the way to the tavern, witness asked Tucker if Patterson owed him anything — Tucker replied, that Patterson owed him nothing. When they reached Rmnyon’s, they went into *the front room on the right side of the entry. [*325 Tucker was glad to see Patterson ; said that the defendant owed him nothing; that they had had a settlement; he recollected that, and that twenty dollars had been paid by the defendant to him, on that settlement. There was something said about a receipt, and I understood from them that a receipt was given. The paper purporting to be a release, executed by the plaintiff to the defendant, dated 17th February, 1823, (pro ut the same,) was then read by the defendant to the plaintiff, and afterwards by the witness to the plaintiff, and Tucker said that he was willing to sign it, and placed his mark to the paper and the said Luke Hevius signed it as a witness. Ho liquor had been called for before the execution of the release, and Tucker was perfectly sober. Tucker said that Peter Welsh had told him that he bad a note in his possession. Tucker further said that at the time of the settlement something was said about an article of agreement for the work of another year, and that he was to work another year for Patterson, but did not go to Patterson according to agreement. Tucker did not appear to know distinctly what had taken place the evening of the settlement. The said Luke Hevius further testifies, that he has seen Peter Welsh frequently write, and has-seen frequently of his writing. Mr. Welsh taught a school in the neighborhood. He thinks that the- signature as witness to the paper purporting to be a receipt in full for work done by Thomas Tucker-to Joseph Patterson,'dated October 11th, 1817, is in the handwriting of Peter Welsh, but will not swear it positively. Upon being cross-examined on the part of the plaintiff, he the said Luke Hevius says, that the release is in the handwriting of Mr. Green. Witness does not know that Mr. Patterson had any other business at Hew Brunswick the day they went down to see Tucker. Tucker executed the release and Patterson paid him one dollar. Patterson said it would not be good unless he paid him the dollar. Witness knows that Tucker was in the employ of Patterson. Witness had heard of the loss of tlie note for two years. Witness does not recollect the day of the month the release was executed; he supposes it was on the day it bears date — it was on a Monday. Patterson called upon him to go with him to New Brunswick. He said that he was sued by Tucker on a note. He said there was no note but an article of agreement. Patterson did not take witness along with him as a constable; there was no arrangement between witness and Patterson. *Upon [*326 being interrogated what Patterson said to him on the way to Brunswick, witness replied, that Patterson told him, that he had a receipt from Tucker, but wanted to get a release. Witness called upon Tucker at his own option, as he did not want to have anything to do with it, unless it was right. No threats were used, nor was it stated that Patterson was a rich man. Tucker said that lie-was rather persuaded to commence the suit. Tucker said that ho recollected signing the paper left with Peter Welsh. Witness has seen Tucker in a drunken frolic, but on that morning he did not appear as a man coming out of a frolic. Tucker said, when asked if he would take some brandy, that he had not drank in some time, and said that he would drink a little gin, and then drank a small glass of gin. This was after executing the release, and he drank no more at Runyon’s. The witness and Patterson then got into the sleigh and invited Tucker to ride with them, and he rode with them as far as Brinson’s tavern, two or three miles out of Brunswick, and witness and Patterson staid there not longer than ten minutes. After the release was executed the dollar was paid by Patterson to Tucker. He declined receiving it, saying that Patterson owed him nothing. Tucker was told that the paper he was to sign was to release the suit then commenced. The witness upon being asked, if Tucker knew the meaning of the words, remise, release and quit claim, said, that Tucker understood, he thought, the meaning of the words “ quit claim.” Tucker cannot read nor write; but has good understanding, though much addicted to intemperanee. Witness cannot say that Tucker is of easy disposition, or easily persuaded. Witness has heard from two or three persons about the note. Upon being asked by the counsel for the defendant, what Mr. Patterson said in the sleigh, as they were going to Brunswick, about the note, Patterson denied that he ever gave Tucker a note — it was an article of agreement left with Welsh.
    John Vantilburgh was then offered as a witness on the part of the defendant, and testified as follows: That about a year ago Welsh told him that a note had been left with him, Welsh; but thinks that Welsh had told witness previous to that time, that the paper left with him, Welsh, was an article of agreement, and that Patterson had come and taken it up without the consent of Tucker. Witness does not recollect that Welsh said anything about rubbing it in his hands. Witness never heard of the note, or agree-*327] ment, *till after the dispute between Welsh and Patterson ; both resided within two or three miles of the house of the witness. The dispute between Welsh and Patterson commenced in the year 1820.
    Upon being cross-examined on the part of the counsel for the plaintiff, the witness said that Welsh first told him that the paper left with him was an article of agreement as witness thinks — Tucker had worked for witness. Tucker was illiterate, but had shrewd notions — very fond of liquor. The plaintiff and defendant having closed the parol evidence on both sides, the counsel for the defendant offered and read the release sworn to by Luke Uevius, dated February 17, 1823, (prout the same), and then offered to read in evidence a paper in the words and figures following: “Beceived of Joseph Patterson twenty dollars in full for work done at tanning for said Patterson. October 11, 1817.
    his
    Beceived by me, Thomas M Tuckee.
    mark.
    Witness,
    Petee Welsh. being the receipt to which .Peter Welsh and Luke Nevius refer in their testimony. To which evidence the plaintiff objected and prayed that the same might be overruled, and the defendant insisted that the same was lawful and admissible. Whereupon the said judges of the said court did then and there declare and deliver their opinion that the said evidence was unlawful and inadmissible, and overruled the same. To which opinion of the said judges, the said defendant did then and there except, &c.
    Upon the return of the writ of error the following errors were assigned: 1st. That the declaration aforesaid and
    the matters therein contained, are not sufficient in law for the said Thomas Tucker to have or maintain his aforesaid action thereof against the said Joseph Patterson. 2d. That by the record aforesaid it appears that the judgment aforesaid, in form aforesaid given, was given for the said Thomas Tucker against the said Joseph Patterson; whereas by the law of the land the said judgment ought to have been given for the said Joseph Patterson against the said Thomas Tucker. 3d. That the court below overruled and rejected legal and competent testimony.
    
      Green, for plaintiff in error.
    
      Hamilton and W. Halsted, for defendant.
   *Tho Chief Justice delivered the opinion of the [*328 court.

Error is assigned in this case upon the matters contained in a bill of exceptions, and is said to consist in the overruling by the court below, of a receipt offered in evidence by the defendant there, the plaintiff in this court.

Tucker declared on a promissory note, alleged to have been made by Patterson, and afterwards, and without payment by him, improperly cancelled and destroyed. To prove his case lie called and examined one Peter Welsh. Patterson, admitting that Tucker had been in his employ as a tanner, denied the making of a note, insisted that it was an article of agreement relative to the further employment of Tucker, which had not been fulfilled by Tucker, and sought to disprove the testimony of Welsh, and to shew the writing signed by him, to be merely an article of agreement, by circumstances and by antecedent declarations of Welsh himself. He also produced and gave in evidence a full release, executed by Tucker soon after the commencement of the action. He farther alleged that long before the commencement of the action, he had settled with Tucker, and paid him all that was due to him, and offered in evidence a receipt bearing date 11th October, 1817, after the date of the note, for $20 “ in full for work done at tanning for said Patterson,” subscribed Thomas (his (xj mark) Tucker, and bearing the name of Peter Welsh as a subscribing witness. Welsh being asked, whether the name thus subscribed was his handwriting, testified that he did not believe it was., On the part of Patterson a witness testified that Welsh taught school in the neighborhood — he had frequently seen him write, and seen frequently of his' writing, and he thought the signature to the receipt was the handwriting of Welsh, but would not swear to it positively. The same witnéss also testified, that on the day and before the release was executed, in a conversation Tucker told him, on being asked if Patterson owed him anything, that Patterson owed him nothing, and again in. the presence of Patterson, Tucker said he owed him nothing; that they had a settlement, and that $20 had been paid to him by 'Patterson on that settlement. Something was said about.a receipt, and the witness understood from them that a receipt had been given. Afterwards the release was executed, which Tucker was told was to release the suit then commenced. Upon being offered one dollar, the consideration *329] *mentioned in it, he declined receiving it, saying that Patterson owed him nothing. The Court of Common Pleas refused to permit the receipt to be given in evidence to the jury.

On the part of the defendant in error, it is insisted the overruling of the receipt was legal and proper, because the subscribing witness, having denied his signature, there was not sufficient evidence to warrant the court in tubmitting it to the j ury.

The general rule of evidence requires the production and examination of the subscribing witness, whenever there appears one on the face of the instrument. But when the witness cannot be had, the reason of his absence being satisfactorily explained; or when, if had, legal impediments to his examination exist: or when, if present and examined, he is unable or unwilling to prove the execution of the instrument, as if he denies his attestation, or in other words, that ho was present at the execution, and subscribed as a witness, or if he admit his subscription, but deny that he saw the instrument executed, other evidence will then be received. The law prudently calls for the testimony of the witness, but is too wise and too conscious of human imperfection and frailly, to rest its confidence, to limit its inquiry, and to conclude the rights of the parties solely by the recollection or forgetfulness, the integrity or waywardness, of any witness. In Dayrell v. Glasscock, Skinner 413, it was ruled that if there are three subscribing witnesses to a will, and on the trial, one of them would not swear he saw the testator seal and publish it as his will, yet if it be proved to he his hand, and that ho set it as a witness to the will, it is sufficient. In Blurton v. Toon, Skinner 639, an action of debt on an obligation and non est factum pleaded, one of the subscribing witnesses was dead, and the other being sworn, said his hand was subscribed as a witness, but that he did not see the obligation sealed and delivered; upon evidence of the handwriring of the other witness, the obligation was held to he sufficiently proved. The case of Pike v. Badmarring, cited in Andrews 236, and 2 Str. 1096, was an ejectment tried in the King’s Bench at bar upon a will — ■“ and every one of the three subscribing witnesses to the will,” says Andrews, “ denying the execution, there was an endeavor on the side of the devisees to maintain the will without calling any of them; but the court insisted upon hearing these first and they all denied their hands; whereupon it was urged that the party could not call other persons in opposition to his *330] own witnesses. *But the court admitted other evidence, for that a man shall not'lose his cause through the iniquity of his witness.” And Strange says the will was supported. In Goodtitle v. Clayton, 4 Burr. 2224, Justice Yates said, there are cases where one witness has supported a will by swearing that the other two attested, though those other two have denied it; and Lord Mansfield said he had several cases both upon bonds and wills, where the attestation of witnesses had been supported by the evidence of the other witnesses, against that of the attesting witnesses who denied their own attestation; and in Abbot v. Plumbe, Doug. 216, he held that though the subscribing witness deny the deed you may call other witnesses to prove it, and said that it had often been done. In 10. Vez. 174, the Master of the Bolls said, “If there is the attestation and he confesses himself to be the attesting witness, prima facie, the presumption is, that what he has attested has taken place in his presence; if he denies that, other evidence is admissible, from circumstances, as where there were no attesting witnesses, or the person whose attestation appears, does not exist, proof of the handwriting is sufficient to enable a jury to presume in such a case, that sealing and delivery took place though the handwriting alone does not of itself import sealing and delivering.” In Fitzgerald v. Elsee, 2 Campb. 635, the subscribing witness to an indenture of apprenticeship having testified that he did not see it executed, it was objected that it must be taken, never to have been executed with due formality; but Lawrence S. said, it was then to be treated as if there were no attesting witness, and he admitted other proof of its execution. In Lemon v. Dean, ibid 636, it was held that if the subscribing witness cannot prove a note by reason of not having seen it drawn, it may bo proved by other witnesses. In Rex v. Harringworth, 4 Maule and Selwyn 353, it was said by Lord Eilenborough “ a party who would prove the execution of any instrument that is attested, must lay the ground work by calling the subscribing witness to prove it if he can be produced and is capable of being examined. His testimony indeed, is not conclusive, for he may be of such a description as to bo undeserving of credit, and then the party may go on to prove him such, and may call other witnesses to prove the execution.” In Talbot v. Hodson, 7 Taunt. 251, by Gibbs, C. J. “ Where an attesting witness has denied all knowledge of the matter, the cause stands as though there *were no attesting witness, and other evidence may [*331 be admitted. Hero the attesting witness who attests the sealing and delivery says, she saw nothing of it, and the attesting witness being thus got rid of, it is open for the jury to consider of tho effect of any evidence that may be adduced.” In Sigfried v. Levan, 6 Serg. and Rawl 310, Justice Duncan delivering the opinion of the court, said, “The signature, sealing and delivery are matters of fact, to he tried by the jurors. If the subscribing witness denies the attestation, or is unable or unwilling to prove the execution of tho deed, collateral circumstantial evidence, proof of handwriting of the attesting witness, or acknowledgment are admissible. Where there is proof of the handwriting of the attesting witness this is evidence of all he professed to attest by his signature, the sealing and delivery of the bond.” In Pearson v. Wightman, 1 Rep. Con. Co. So. Ca. 310, Justice Cheves delivering tho opinion of the court says, “ Where subscribing witnesses cannot be produced, or where when produced they deny their signatures, or otherwise fail to prove tho due execution of tho will, circumstantial evidence may bo adduced to supply this deficiency. Of this description of evidence, proof of the handwriting of the subscribing witnesses is the most direct and usual.” And speaking of one of the subscribing witnesses'who, like Welsh in the present case, did not positively deny the name to be his writing, but doubted it, he says — “ I then think the testimony of this witness himself would have authorized the verdict of the jury as it regards him. But the testimony of the witness already mentioned proves satisfactorily his handwriting,” — and he thought, therefore, that the verdict as it regarded him ought to stand.

The case of Phipps v. Parker, 1 Camp. 412, was cited and relied on by the counsel of the defendant in error. In that case, which was an action for words, it became necessary to prove a policy of insurance, which had the names of two of the directors of the Sun Eire Insurance office affixed to it, and purported to be executed by them in the presence of I. S., as attesting witnesses. I. S. swore it had not been executed in( his presence by either of the gentlemen whose names appeared at the bottom of it. It was then proposed to prove the execution of the policy, by evidence of the handwriting of the directors who had signed it, and b,y shewing that they had subsequently acknowledged it *332] to have been their *deed: Lord Ellenborough is reported to have said, “ The policy purports to have been executed in the presence of the witness. I must, therefore, take it to have been executed in his presence if it was executed at all. If it was not executed in his presence, the conclusion of law is that it -was never executed as a deed, although it may have been signed by these two directors. Nor can I admit evidence of their acknowledgment, since the attestation points out the specific mode in which the execution is to be proved. Being issued as an attested deed, and now certainly appearing not to have been executed in the presence of the attesting witness, I think it must be considered as invalid.” Of this case it may be said, it is entitled to no weight. It has either been inisreported, or it proves that a very able and learned judge may err. Eor it is inconsistent with a series of well considered adj udications, and Justice Parke, speaking of it in 7 Taunton, 251 says, " The same high authority which decided Phipps v. Parker, has since held otherwise,” alluding probably to Rex v. Harringworth, already mentioned. The admissibility of other evidence then upon the denial or failure of proof by the subscribing witness, is abundantly shewn. But it was insisted, on the argument at the bar, that when the subscribing witness denies his handwriting, the mode of proof is confined to the handwriting of the party making the instrument, and that no case is to be found, where proof of tho handwriting of the witness was received or deemed sufficient. Now it is manifest that if such a rule exist it must utterly exclude all proof of an instrument to which a party unable to write, had made his mark. The observation that no such case is to be found, appears from the books already referred to, evidently too broad. But the law is not a mere collection of precedents. It is a science of principles, and he must be a very timid judge who is fearful to tread where he has the solid ground of principle to support him, because he cannot see the print of the footsteps of some predecessor. In Newbold v. Lamb, 2 South. 450, it was recognized as a settled principle and not now to be questioned, that proof of the death and of the handwriting of a subscribing witness to a deed, is sufficient to pass the deed to the consideration of the jury. And it has been held that when the witness is out of the jurisdiction of the court, 12 Mod. 607; 2 East 250; 4 John 461; 5 Cranch 13; or become blind, 1 Lord Raym. 734, or insane, 3 Campb. 283; or convicted of an infamous crime as *forgery, 2 Str. 833 ; or has become interested, 5. T. [*333 R. 371, 1 Str. 346, Binney 45; or upon due and strict inquiry cannot be found, 12 Mod. 607, 5 Cranch 13, proof of the handwriting of the attésting witness is prima facie evidence of the execution of the instrument. Now it is said the signature of the attesting witness when proved is evidence of every thing on the face of the instrument, on the principle that what a man has attested under his hand is true, or that the witness would not have subscribed his name in attestation of that which did not take place. If then such be the rule in these cases, and such the principle on which it is founded, the very same presumption must arise and of course the same rule exist, where the handwriting is satisfactorily proved to be that of the witness, although from imperfection or defect of memory, he may have forgotten if, or from undue influence or bad motives he may wilfully and wickedly deny it. In such case, a greater quantity of evidence to prove his handwriting may be demanded, but when the fact is established, the consequence must be the same. Another instance may strongly illustrate and support my argument. In the case of Gaston v. Mason, Coxe 10, where the witness admitted his signature, but had no recollection of the execution of the instrument, the same presumption had its effect and the instrument was held sufficiently proved to go to the jury. It is true where the witness admits his signature, but expressly testifies that he did not in fact see the execution, the presumption is repelled and resort is had to proof of the handwriting of the party, or to collateral proof and the evidence of circumstance. And in the present case it-will be recollected beside the testimony of Uevius as to the handwriting, were the release, and the admission of Tucker respecting the settlement and receipt, and his repeated declarations that Patterson owed him nothing. Here then were some proof of the handwriting of the witness, and independent thereon, some evidence of circumstances, tending to produce a belief that the contents of the receipt were true. Whether these matters were such as should have satisfied the jury that the receipt was genuine, it is not necessary to examine. It is enough that they were sufficient fairly to raise a question of fact, which ought to have been submitted to the jury, for their determination. Where there is no evidence of the due execution of an instrument it is the duty of the court to reject it. Where there is some evidence, the opinion of the jury ought to be taken. The remarks of Justice *Duncan, in Sigfried v. Levan, a case not dissimilar [*884 to the present in many circumstances, ape very appropriate. The mistake arises from supposing that the court in suffering the deed to go in evidence to the jury decide the issue. Nothing can be more unfounded. All that is done by the court in admitting the deed as evidence, is, that if the execution of the deed is proved by the subscribing witness, the party has made out a prima facie case, not a conclusive one; or in cases where recourse is had to the secondary evidence, the collateral proof is such that a jury might presume the execution, and then these facts are submitted to the jury, to exercise their own judgment, to draw their own conclusions, of sealing and delivery. The facts and circumstances were of that nature that the bond should have been received in evidence, open to all evidence that might be adduced to lessen the weight of these facts and circumstances, and in withholding the bond from the jury, the court decided that issue of fact which could only be decided by the jury.”

In opposition to the admissibility of the receipt it was further insisted, upon the argument at the bar, that the court might have rejected it, not that they actually did so, for their reasoh is not stated on the bill of exceptions, because irrelevant and inapplicable to the note. But this conclusion can find no appearance of support except in a partial view of the circumstances of the case. The receipt, it is said, does not mention the note, and is in full for tanning done for the defendant. It must, however, be recollected that whether a note had been given or had existence, was a subject of controversy. And the purpose of the defendant was as well to repel the allegation that he had made such a note, as also to shew by the release, and the receipt, and the declarations and admission of the plaintiff, that whatever might have been due to him at any time, had actually and fully been paid. In this point of view a receipt given some months after the alleged date of the note, purporting to be in full for work, and more especially if, as may be fairly inferred from the matters set forth in the bill exceptions, no tanning had been done by the plaintiff for the defendant in the intermediate period, was clearly relevant and competent.

Let the judgment be reversed.  