John Robert and others Executors of John De Noyelles, against Isaac Garnie

John Robert and others Executors of John De Noyelles, against Isaac Garnie. NEW-YORK, May, 1805. Parol evidence is not admissible to shew, from circumstances that the sum expressed in a receipt of 25 years standing was continental money, and therefore amounted to less than the value expressed. A payment for which a receipt is given to a person, in his evidence of a payment on his own account, and that it was not made on account of a debt due from him and another, though there do not appear any directions to apply it to the separate account, especially if such payment be for the exact amount of a balance due from himself, and would overpay the joint debt. DEBT on a bond in the penal sum of 2251. dated 17th March 1773, conditioned for the payment of 701. on the 1st of May then next, and 421. 10s. on the 1st of May, 1774. At the trial, payment of part of the amount was indorsed on the bond, and for the exact balance with interest, the following receipt was given in evidence. “Received, Haverstraw, 5th of May, 1779, of Isaac Garnie the sum of one hundred and four “pounds, on account of a bond given to the estate of John De "Noyelles, deceased. E. W. Kiers executor.” The plaintiffs’ counsel then offered to prove, that at the time when the receipt was given there was no other circulating medium than continental paper money, which was then very much depreciated; that Kiers had, about that period, received large sums of such currency, and from thence wished to infer, that the money mentioned in the receipt was continental money, and its value far less than the amount specified. This being over-ruled, he offered to prove a joint and several bond to the testator, by Garnie and one Johnson, conditioned for the payment of 201. and insisted he had a right to apply the money in the receipt to the satisfaction of this last bond, as it did not appear that the debtor had directed its application. The judge being against him on this point also, charged the jury to find for the defendant, in favor of whom they accordingly brought in their verdict. The application now made was to set this aside for misdirection. Baldwin for the plaintiff, urged the same reasons as were used on the trial, citing Goddard v. Cox, 2 Stra. 1194, to shew the creditor’s right to apply. Woods and Caines contra, not denying the authority, reasoned as in the decision of the court, which was delivered by, [MAJORITY — Tompkins, J.] 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.