majority">Williams, J.

The defendqnt claims, that the evidence offered by the plaintiff, was improperly admitted ; and that the charge to the jury was incorrect.

I n support of the first point, he contends, that a receipt in full is conclusive, and not to be contradicted or controuled, by parol proof; and refers to a number of cases decided by our courts, The plaintiff claims, that a receipt not under seal may Tie explained, contradicted or controuled, by parol testimony ; and cites a number of cases from New-Tork and Massachusetts.

It is certainly true, that anciently, in this State, little or no i difference was made between instruments sealed and unseal-5 ed ; but instead of reducing sealed instruments to the level of; those not sealed, the latter were raised to the rank of sealed" instruments. Thus, promissory notes were treated as specialties; scrolls were substituted for seals ; and receipts assumed ; the places of releases. It is equally true, that in some of our sister states, receipts not under seal are degraded to a very low station. It was, indeed, once doubted, in Jfew-Yorlt, whether a mistake could be set up, against a receipt in full;; in a court of law ; (Ensign v. Webster, 1 Johns. Ca. 145.) since which it has been held, that receipts might be explained and contradicted ; might be shewn to be conditional; (House v. Low, 2 Johns. Rep, 378.) and recently, it has been decided, that in an action declaring upon a receipt, that receipt need not be produced, not being the best evidence, as it was liable to be destroyed by parol testimony. South wick v. Hayden, 7 Cowen 335, 6. 1

■ I do not adopt either of these positions. To say that a receipt in full, should be as sacred as a release under seal, that it may be pleaded in bar to an action, that it cannot be avoided; for fraud or mistake, without resorting to a court ot equity, ⅛ not the common law doctrine, and is inconsistent with the principles adopted by this court, in late decisions, regarding *413promissory notes. On the other hand, to treat receipts merely ■ , r , r , • , i as evidence of the payment ot so much money, as is edged to have been received in them, is to leave the party who has taken them, to be called to account in the same manner, as one who had taken a receipt for the same sums, expressly to apply on account, and is, in effect, to deprive the former of all benefit he has attempted to derive from a receipt in full. No authority in this State will support this doctrine ; and it is believed, that none can be found in Great-Britain to that effect.

In Stratton v. Randall, 2 Term Rep. 371. one Avarne wished to raise money, and secure it, by an annuity. Randall, as his surety, signed the bond and deed, and also the receipt for the money. The plaintiff having neglected to enrol his annuity, as required by the statute, lost the benefit of it; and he then sought to recover back the money paid under it, and to charge the defendant, by this receipt. The defendant claimed, that m fact he never had the money, but it was paid to Avarne, and this the plaintiff knew ; and that he signed the receipt merely as surety for Avarne. His counsel admitted, that the receipt was strong, but not conclusive evidence of the fact of payment; and the court proceeded on the ground, that a court of equity would distinguish between those who received money, and those who only joined in a receipt for it; and that the action being a substitute for a bill in chancery, a court of law might do the same ; and that the receipt must be taken with all its concomitant circumstances.

In Middleditch v. Sharland, 5 Ves. jun. 87. the steward of a lady, who was at times disordered in mind, to a bill for an account brought by her administrator, pleaded her receipt in full. The Master of the Rolls said, this receipt is not sufficient to entitle the defendant to set it up, as an absolute bar of all demands. Heathen adverts to a number of circumstances, rendering it suspicious ; such as her state of mind, the situation of the defendant as steward, his not denying keeping accounts, and yet not producing any.

These cases shew, that though such receipts are not conclusive ; yet the cautious manner in which they are attacked, also shews, that they are not to be treated as of little importance.

In Bristow v. Eastman, 1 Esp. Rep. 172. Lord Kenyon says, a receipt in full of all demands, when given with com-

*414knowledge of all the circumstances, is a conclusive Lar the action ; and the party giving it shall not be allowed to r¡p Up the transaction so closed and concluded.

In Alner v. George, 1 Campb. 393. Lord Ellenborough says, there can be no doubt that a receipt in full, where the person who gave it was under no mis-apprebension, and can complain of no fraud or imposition, is binding upon him.

In Benson v. Bennett, 1 Campb. 394. n. a receipt obtained by fraud or misrepresentation, was held to be a nullity. The same principle was recognzied in Trisler v. Williamson, 4 Har. & McHen. 219. And in Fairmaner v. Budd, 7 Bing. 574. (20 Serg. Lowb. 246.) it was held, that where the signer of the receipt was illiterate, proof might be received to shew that it was not drawn according to the authority. See also Lawrence v. The Schuylkill Navigation Company, 4 Wash. C. C. Rep. 562.

The true view of the subject, thenj seems to be, that such circumstances as would lead a court of equity to set aside a contract, (such as fraud, mistake, or surprise,) may be shewn at law to destroy the effect of a receipt. In this way, that all-: important principle, that written evidence is not to be destroyed by parol — that principle which Chancellor Kent says, is not tobe disturbed or shaken, — is preserved ; and yet, where the circumstances are such, that the receipt ought not to operate, i the party need not to be driven to a court of equity.

To apply these principles to the case before the court; it was proper to admit parol testimony to shew, that the receipt did not include all the expenses incurred in obtaining the mail contract. But lest it might be inferred, that the receipt was only evidence of the payment of so much money, the jury should have been instructed, that if the plaintiff executed the receipt, with a knowledge of the circumstances, and there was no mistake or surprise, on his part, or fraud or imposition, on the part of the defendant, he was not entitled to recover. As, this evidence was admitted, without the proper guard or restriction, the defendant may have suffered from it; and although that point does not appear to have been distinctly presented to the court, yet justice requires, that the case be submitted under these restrictions. There must, therefore, be a new trial.

*4158 .The other Judges were of the same opinion, except Bisseel, ⅛ , ° ⅝ who was not present when the case was argued.

New trial to be granted.

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