Harrison v. Harrison , 9 Ala. 73 ( 1846 )

ORMOND, J.

The account offered in evidence, being made out against the plaintiff’s intestate, and receipted generally by Leonard the creditor, the presumption arises, until the contrary is sheAvn, that it aves paid by the debtor, the plaintiff’s intestate. To repel this presumption, the defendant offered to prove by the declarations of Leonard, that he paid the money.

It is well settled, both in England and the United States, that the entry, or written declaration, of one against his intertate, as where it discharges a demand due from others, or where the entry is made in the usual and ordinary course of business, is evidence of the facts there stated, in a controversy between third persons. [Philips on Ev. 256.] Thus, in this case, if Leonard had acknowledged in the body of the receipt, or at the foot of the account, that he had received the money from the defendant, it would have been competent testimony, after his death, in this suit, to establish, not only the fact of payment, but by whom the payment was made.. The reason of the rule is, that the' declaration is made hy one who must know the fact, and had no motive to misrepresent it.

What Leonard said, either Verbally, or in writing, at the time of the payment of the money, must be admissible as a part of the res gestee; and upon this ground, it would be unimportant, whether he was dead, or alive when the testimony was offered. His declarations subsequently to the payment of the money, do not come within either of these established principles: not within the first, because not in writing, and made at the time' — nor within the second, because not being a part of the res gestee, They are the mere admissions, or declarations of a third person, which are only binding on the person making them, or those claiming through him ; .as to all others, they are mere hearsay. [Thompson v. Stevens, 2 Nott & McCord, 494; Dunn v. Slee, Holt’s N. P. 399; Thomas v. Thomas, 2 J. J. M. 60; Cleggage v. Swan, 4 Binn. 150; Cutbush v. Gilbert, 4 S. & R. 552.]

The witness certificate was properly excluded ; the mere possession of it is no evidence that the defendant had paid the money due upon it; and if it was, it would still be necessary to show that it was paid by request of plaintiff ’s intestate.

We think the Court did not err in the exclusion of the testimony, and its judgment is therefore affirmed.