
    *Johnson's Ex'or v. White.
    March, 1837,
    Richmond.
    (Absent Brockenbrough, J.)
    Debt on Specialty — Plea of Payment — Evidence to Repel Presumption of Payment. — in debt on a specialty, payment being pleaded, the defendant gives in , evidence, as affording ground on which payment might be presumed, a specialty of later date, executed by the plaintiff to the defendant: Held, evidence may be received from the plaintiff to prove the consideration for which the latter specialty was given, and the circumstances under which it was executed.
    Supersedeas to a judgment of the circuit court of Hanover. The action was debt by Moses White against Richard H. Johnson executor of Bailey S. Johnson, upon a penal bill; and the defendant pleaded payment. At the trial the plaintiff gave in evidence a penal bill executed by the defendant’s testator on the 3d of February 1817, for the payment of .674 dollars twelve months after date, under the penalty of 1348 dollars; on which penal bill was an indorsement signed by the plaintiff, in these words: “I disclaim all interest that has already or may accrue on the within bond. Moses White, 27 May 1818.” And the defendant gave in evidence (not as a set-off, but as affording a ground on which the jury might presume payment of the said penal bill) the following penal bill executed by the plaintiff, to wit: “Fifteen days from the date hereof, for value received, under the penalty of sixty-eight dollars and fifty-four cents, I promise and oblige myself, my heirs, executors, administrators and assigns, to pay or cause to be paid to B. S. Johnson, his heirs, executors, administrators or assigns, the just and full sum of thirty-four dollars and twenty-seven cents. Witness my hand and seal this 15th day of November 1823.
    Moses White [L. S.]”
    *The plaintiff, for the purpose of repelling the presumption which might arise from the execution of the last penal bill, introduced a witness to prove that the defendant’s testator had loaned, in the year 1821, to one Bartlett D. Burton the sum of 30 dollars; that the said testator had shortly thereafter become uneasy lest he should lose the debt, Burton being in failing circumstances; but that sometime afterwards he expressed his satisfaction that he had secured it in the hands of the plaintiff. And the plaintiff also introduced in evidence a due bill, the body of which was in the handwriting of the said defendant’s testator, but the name of the obligor torn off; which due bill is in these words: “I have borrowed and received of B. S. Johnson the sum of 30 dollars, which I promise and oblige myself, my heirs &c. to return on demand. Witness my hand and seal this 18th day of June 1821. Teste, Eveline White.” On the back of which due bill, the following words were indorsed in the handwriting of the said defendant’s testator, to wit: “B. D. Burton to B. S. Johnson. Note for $30.00.” And on which bill was further indorsed'the following assignment: “Nov. 6, 1823. For value received, I assign the within bond to Moses White. (Signed) B. S. Johnson.”
    And the plaintiff also introduced a scrap of paper in the handwriting of the defendant’s testator, in these words: “Interest on $30, from the 18th of June 1821 till 6th Nov’r. 1823, 2 years 4 months and 18 days, is $4.27. Principal and interest ,$34.27.” Which testimony and documentary evidence were introduced by the plaintiff for the purpose of proving the consideration for which, and the circumstances under which, the said bill penal was executed by the plaintiff to the defendant’s testator. To the admission of this evidence the defendant objected, but the court overruled the objection, and permitted the evidence to go to the jury for the purpose aforesaid. To which opinion the defendant excepted. The jury found a verdict for the plaintiff, providing' however that the principal sum was not to carry interest; and judgment was given accordingly. To that judgment Johnson’s executor obtained a supersedeas.
    R. G. Scott and Leigh, for plaintiff in error.
    Lyons, for defendant in error.
    
      
      He decided the cause in the circuit court.
    
    
      
       See generally, monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
   TUCKER, P.

I am of opinion that there is no error in this case. The court properly admitted the bond of White to go to the jury as evidence in support of the plea of payment; but it not less properly admitted the evidence of the consideration for which that bond was given, to explain and qualify the bond. If the bond was evidence of an acknowledged indebtedness, the facts connected with that bond were surely proper, as part of the res gesta, to explain the character and extent, and to ascertain the weight and importance of the acknowledgment. It is not necessary to decide how far the bond would have been conclusive, had it been pleaded as an estoppel. But I think it may safely be affirmed, that as it was not used as an estoppel, but merely introduced as evidence of payment, it was not conclusive, however persuasive it may be. This,is certainly the case with a receipt, which seems at one time to have been looked upon, in some of the cases, as conclusive, though even at an early day it was held otherwise. Comb. 59; Starkie on Evid. part IV. p. 32, 1273, 1274; Lampon v. Corke, 5 Barn. & Ald. 606. In this last case it was said, that as the receipt was not under seal, it could not amount to an es-toppel, and if introduced merely as evidence, it was susceptible of being rebutted by the other circumstances of the case. Now that is also the general rule as to a deed, which might be used as an estoppel, but is only introduced as evidence, the estoppel being waived. Starkie on Evid. part II. pp. 206, 302. The strong presumption therefore, *in this case, from the plaintiff White’s acknowledging himself in 1823 to be debtor to the defendant, may be rebutted; and this I understood the counsel to concede. But if it may be rebutted, what evidence is so proper to repel it, as an explanation of the consideration and the circumstances under which the bond was given? Those circumstances constitute part of the transaction, are explanatory of its real nature, and shew what reliance ought to be placed upon it. They were therefore properly admitted to go to the jury, as evidence to rebut the effect of the bond introduced by the defendant. It is true, the proof that the consideration of the bond from White to Johnson had no sort of connexion with the bond from Johnson to White, by no means removes the doubts which grow out of the execution of the former bond. But that was a matter for the jury, upon the whole evidence; and certainly, in deciding that question, their conclusion would have been very different from that which they have come to, had it appeared that this bond had been given for a balance due upon a settlement of all accounts, including the bond of Johnson to White. This shews that the facts which led to the execution of the bond from White to Johnson were important in the case, and were therefore proper to be introduced. I think the judgment should be affirmed.

Judgment affirmed.  