Robert v. Garnie

3 Cai. Cas. 14

Opinion

Tompkins, J.

Two questions are made in this case,

1-Whether the evidence which the plaintiffs offered, relative to the currency, in which the sum of money mentioned in the receipt of E. W. Kiers was probably paid, ought to have been submitted to the Jury?

2-Whether the plaintiffs were at liberty to apply that sum, or a sufficient part of it, to the discharge of the joint bond of the defendant and John Johnson, conditioned for the payment of twenty-pounds?

Although receipts for money are examinable, they ought not to be affected by circumstances so extremely slight, as those which the plaintiffs proposed to prove in this case.

The probability is, that the money mentioned in Kiers’ receipt, if paid in continental money, was received by him at its real value, according to the then depreciated state of that currency.

This receipt was given nearly twenty five years before the trial of the cause, and, after such a lapse of time, it would be extremely mischievous to permit the party, wlipse co-executor had given it, to destroy its operation by light circumstances.

There is no pretence for the plaintiffs to apply the sum of money paid in May, 1779, to the discharge of the bond of Johnson and the defendant; the receipt is for 1041. on account of a bond given to the estate of De Noyelles. There was at that time no one bond clue the testator upon which a sum equal to that paid was due, except the bond upon which this suit is brought, and the sum of 1041. was the precise amount then remaining unpaid upon that bond. This shews that both debtor and creditor Intended at that time to apply the payment to the discharge of this. bond.

I am therefore of opinion that the testimony offered by the plaintiffs, which was over-ruled by the judge, was properly rejected, apd that the defendant ought to retain his verdict.