THE VICE-CHANCELLOR :-A party cannot notice a cause for hearing by anticipation. If a suit be waiting for a report, it cannot, merely because such report will be obtained before the cause can be heard, be put upon a calendar for a hearing. Such a thing can certainly not be done except by consent of all parties. The defaults must be set aside; but, inasmuch as the party applying had notice of hearing and saw how the cause stood at a certain number upon the calendar, he should have attended when it was called, and then moved that it be stricken off or placed at the bottom. No costs, therefore, given. 1835. PATTERSON v. ACKERSON, PATTERSON U. ACKERSON, et al. Although a receipt, not under seal, is expressed to be in full, and therefore presumptive, in favor of payment in full, yet the presumption may be repelled, explained and contra dicted by parol testimony. And where a party claims against the face of such receipt, it is for him to prove his prior demands and 'tis not obligatory upon the holder of the receipt to show previous payment independent of the receipt. 1835. The question upon the genuineness of a receipt (in respect February 3, to its date) which had been one of the points in controversy -see 1st vol. 101,-was put at rest by the verdict of a jury Receipt. upon a new trial. The receipt was found to be genuine as Parol related to the date it bore. This was the form of the re- testimony. ceipt: "Recd. Sept. 8th 1825, from Mr. William Patterson, ono hundred and twenty-five dollars in full for rent for Factory up to the twentieth of August last." The question now was, upon the effect to be given to the receipt as a piece of evidence: whether it was to be taken in discharge of all previous rent or only in full of rent to the amount of one hundred and twenty-five dollars-which was 1835. PATTERSON v. ACKERSON. July 6th. for one quarter's rent due on the twentieth day of August preceding. In taking the accounts under an order of reference, the master had considered the receipt as only in full for the quarter, and had charged the complainant with the rent of several previous quarters: no other evidence than this receipt having been furnished him. The complainant had taken exceptions to the master's report; and the court was now to decide upon them. These exceptions, so far as they involve any point or principles, will be found referred to in the Vice-Chancellor's opinion. Mr. C. F. Grim and Mr. S. A. Foote, for the complainant and in support of the exceptions. Mr. S. Sherwood, contra. THE VICE-CHANCELLOR :-The receipt for rent due on the twentieth of August, and expressed to be in full, is strongly presumptive evidence of payment of all former arrears; but presumptions arising in this way are, like all other presumptions, liable to be repelled by proof: unless, indeed, the acquittance, for the more recent demand, be under hand and seal, for then it will operate by way of estoppel and exclude all proof to the contrary: Matthews' Pres. Ev. 398. A written receipt like the one before the court, not under seal, is always open to explanation and contradiction by parol evidence; and hence, although it may be, prima facie, evidence of the previous quarter's having been satisfied, yet it is not conclusive. Adopting this rule as applicable to the present case, the burthen was upon the defendants to account for the circumstance of the receipt being given for one hundred and twenty-five dollars in full for rent to the twentieth day of August, one thousand eight hundred and twenty-five, while arrears were still due. There is no evidence to explain or clear up the difficulty. The whole bent of the testimony, on the part of the defendants, was to show that the payment, specified in the receipt, was made on the eighth day of September, one thousand eight hundred and twenty-three, and that the figures had been altered to make 1835. PATTERSON v. it read twenty-five. But if the payment was made and the receipt given in one thousand eight hundred and twenty-five, as two successive verdicts have found, then there is no satisfactory evidence to falsify the body of the receipt in other ACKerson. respects or to show mistake in the manner of wording it, nor to prove that all the rent previous to the August quarter of one thousand eight hundred and twenty-five had not been paid. The bill charges that all the rent was paid up to and including the November quarter, of one thousand eight hundred and twenty-five; and this the answer positively denies, as well also as to the payment of any rent subsequent to the month of August, one thousand eight hundred and twenty-three. It is argued that the answer is not disproved. David Cole, however, acknowledges that one hundred and twenty-five dollars was paid at the time the receipt was given; and instead of this being in eighteen hundred and twenty-three, the fact is now conclusively established that it was in one thousand eight hundred and twentyfive, as the receipt imports-and hence, by the combined. force of the evidence furnished by the witness and appearing upon the paper, I consider the denials of the answer are disproved. But it is said, that the receipt being given by an agent is only evidence of so much money paid at the time and not, as against his principals, evidence of a payment in full or of any of the particulars specified in it. The case of Crary and Morgan v. Turner, 6 J. R. 51, and other cases mentioned in the notes at the close of that case, to which I have been referred in support of the above proposition, appear to me to have no application--being cases of a special or limited agency where the agent or attorney was considered as acting under a particular authority, and could not bind his principal beyond it. But, here, Cole was the secretary of the company and, clearly, a general agent for the purpose of receiving money and giving a proper acquittance when the payment was in full; and I consider his acknowledgment to that effect is to be taken as binding upon them until the contrary is shown-and that the burthen of proof is cast upon them, provided they would gainsay his act. 1835. HARRISON v. I appprehend the master has erred in supposing that it was incumbent upon the complainant to make out affirmatively the previous payments independently of and notwithWILLIAMSON standing the receipt. The receipt itself was sufficient evidence of the fact; and as the defendants set up claims for rent previously due, they are bound to prove such rent was still in arrear and unpaid. Having failed to do this by satisfactory evidence, the master should not have charged the complainant with any rent which accrued previous to the month of August, one thousand eight hundred and twentyfive. The exceptions to this part of the report must be allowed. [His honor then went into the matter of exceptions taken to minor points and reserved the question of costs and further directions until an amended report should come in and be confirmed.] HARRISON and another v. WILLIAMSON and others. G. applied to H. and S. in Baltimore to sell him 74 hhds. of molasses on a credit of four months. They declined d- ing so upon his own credit. He offered to give them a draft upon Mess. H. of N. Y., his consignees. They agreed. G. left Baltimore and went into Virginia. H. and S. wrote to G. saying they were ready to deliver the molasses and considered it at his risk and account. They then commenced shipping it to N Y. (consigned to Mess. H.) and handed over the bills of lading to G.'s agents. Another letter showed they were using all their exertions to ship off the whole; and they forwarded a draft in blank, on Mess. H., requesting G. to sign and return it. They afterwards wrote for the draft and notified G. of the clearance of all the hogsheads. Not hearing from him, they again wrote for the draft. It appeared he had become ill in Virginia; and a friend, at whose house he was, answered their letter at G.'s request, stating that G. would soon go on to Baltimore and then give the draft. They again wrote, urging to have the draft, saying it was all they at present required. G died insolvent and without having signed the draft. The consignees, Mess. H., who had got the merchandize insured, were applied to by H. and S., the latter sending a bill of parcels, referring to G.'s death and asking Mess. H. to honor the amount at the credit of the four months. A creditor in N. Y. had taken out administration upon G.'s effects, and claimed the proceeds arising from the molasses. Held that there had been an absolute sale. And the bill of H. and S., which had been filed to repudiate a sale and to have restoration of the molasses or the proceeds thereof, was dismissed with costs. Vendor and A general bill of exchange has not the effect of an assignment of the money (for which it is drawn) in the hands of the drawee. Feb. 10, 11, 1835. Vendee. Sale or Bill of This case involved the question of a conditional sale and delivery of merchandize; and how far the vendor was at liberty to reclaim the goods after he had parted with the possession, where the contract was not complied with by the vendee? 1835. HARRISON v. Sometime in the month of October, one thousand eight WILLIAMSON hundred and thirty-one, William C. Garrison applied to the complainants, Harrison and Sterritt, merchants of Baltimore, and proposed to buy from them seventy-four hogsheads of molasses, at a certain price, and upon a credit of four months. The complainants were unwilling to make the sale at that length of credit upon Garrison's sole responsibility. Whereupon he offered to give them his draft for the amount at four months on Mess. E. and J. Herrick of New York, to whom he intended to send the property for sale as his factors. They still declined to make the bargain absolutely binding, until they could obtain information as to the standing of the house of E. and J. Herrick, and could satisfy themselves that their acceptance would be good security. Having, in the course of a few days, satisfied their minds on the subject, they concluded to sell the molasses on the terms proposed. In the meantime, Garrison had left Baltimore and gone into Virginia. On the seventh day of November, one thousand eight hundred and thirty-one, the complainants addressed a letter to him, saying: "We are ready to deliver the molasses you purchased from us on the 21st ultimo and consider it at your risk and account." After this, the complainants commenced shipping the molasses; and, by different vessels, shipped the whole for New York, consigned to Mess. E. and J. Herrick, by or before the fourteenth day of December, one thousand eight hundred and thirty-one-and handed over the bills of lading to the agent of Garrison at Baltimore to be forwarded. On the first day of the same December, the complainants enclosed to Garrison a bill of parcels of the molasses and a draft, in blank, on E. and J. Herrick, with a request that he would sign and return it to them; and in their letter they say, we have used every exertion to obtain a conveyance to New York, and have yet forwarded but 10 hogsheads. Thirty more are engaged to go on deck, but the packet has 66 |