
    ELIAS DAVIDSON, vs. JAMES BERTHOUD & SON.
    
      On a writ of error to reverse a judgment of the Jejfersm circuit court.
    
    24 Nov. 1818.
   The Chief Justice

delivered the opinion of the court.

This is a writ of error to a judgment obtained by the the defendants in error against the plaintiff, in an action of assumpsit, for money laid out and expended by the defend-' ants in error, to the use of the plaintiff, and for work anti labor, &c.

la an action of money had and received, tiie receipt of a third person is not admissible evidence. To charge the deft the giver of the re ceipt should be personally », witness.

B. Hardin for appellant, Hardin for appellee.

The only question material to be decided Is, whether the circuit court erred in admitting as evidence, a receipt signed by A. Woolford for $222 11, alledged to be advanced by the defendants in error to the plaintiff’s use ?

ft is explicitly laid down by Peak, in his treatise on Evidence, page 254, that to prove the payment of money, in such a case, the person who made it, or he by whom it was received, should be called as a witness; for the receipt or acknowledgement of the person will be no evidence against the defendant&emdash;and of the correctness of this doctrine, on principle, there can be but little reason to doubt; for proof of the acknowledgement of the person who received the money, would only be hearsay evidence, and the receipt of such person is nothing more than written evidence of his acknowledgement, and whether in writing or by parol, hearsay evidence is equally inadmissible. Phillips’ Ev. 174.

Judgment reversed with costs, and the cause remanded for a new trial.  