*Columbia.*

Heard by Chancellor Desaussure.

oAsuxxim'

#### Duncan M'Crae, *vs.*John Hollis.

This court will open settlements made in mistake, though, receipts in full have been given, and the nóte taken up ; and will allow the larger sum established by evidence.

On the other hand, it will permit the defendant to shew mistakes in the credits, and will correct the errors on that side.

The scales of evidence being poised, the defendant’s answer will have considerable weight.

JUNE, 1810.

. Thehe arc two questions in this case

DECT EE

First', — YV bother any mistake was made in the calculation on which the settlement of the note in question was made ?

Second, — Whether the defendant is not entitled to two credits, which have not been' given 1dm in the settlement ?

These two questions are entirely distinct from each other.

As to the first, there can be no doubt at all, for the calculation is made on tiie back of the original note, and it begins with tbe stun of $ 191 15 cts. instead of $291 15 cts. which is the sum expressed on the face of the note. Ail the calculations arc made on this erroneous foundation ; and after two credits given,' the balance is stated to be *123J? Ill 5 cts. which was paid' together with the costs, and a receipt in full given.* There can be no doubt then on the first point, and the petitioner is entitled to have the error corrected. But'it is said,

Secondly, — That although there was an error in the calculation, upon which the settlement was made, yet there was another error in the settlement, by which an omission of two credits for two payments took place, which he is entitled to have rectified, and by which the note was more than paid off. There is no doubt that the. defendant is entitled to have this error rectified, if it be supported by evidence.

The evidence upon this fact must be strictly examined and compared :

Mr. Ellison, a gentleman of character, who transacted the business, (and who is not interested, as appears by Mr. M'Crae’s declaration of release, in case he had. been liable,) swears that Ms Hollis produced him only two receipts, one dated 6th o. April, 1805, for § 64 4 cts. the other dated April 11, 180», for g 50, both of which were credited hi the statement, on which the settlement; was made: that no other receipts were produced by Mi'.; Hollis except those two. That ho afterwards saw Mr. Hollis, and conversed with him on the subject, and stated the error in the calculation, and that Mr. Hollis did not then deny that a mistake liad been made, hut said it was an old affair, and he had paid much money on the business. He also spoke of-other receipts, but did not produce them — that he (lid not know the exact amounts, nor •dates, nor where they were. And that there are no credits in the books of MeCrae and Can toy, for more than the two payments which were credited in the settlement made by Mr. Ellison. He believes tiiose books may be relied upon for correctness generally, though he has understood there have been a few instances of omissions.

Mr. Joseph Ellison, had not a distinct or strong recollection of the conversation between Mr. Eiiison and *124Mr. Hollis, but corroborates what Mr. Ellison had slated, and adds, that Mr. Ellison having asked Hollis, whether he supposed he had seen any other receipts than the two for which credit was given, or could suppress them, he answered, no.

On the part of defendant, his answer states, that he had made four payments on the note, and placed four receipts of M'Crac, Cantey and Co. in the hands of Mr. Ellison to make the statement on which the settlement was made, and he left the receipts in Mr. Ellison’s hands, being satisfied with his receipt in full.

Mr. William Hollis, a witness for defendant, swore* that he saw a receipt for g 82 ' and some cents, in the hands of Mr. Starke, for so much paid by him on account of Mr. Hollis’ debt to M‘Crae and Cantey ; hut could not say if it referred to the note. He did not know in whose hand writing the receipt was, nor who signed it — supposes it was from Con. Cantey, of whoso hand writing lie has some knowledge, hut he is not sure. He saw the receipt in Picket’s store, late in 1804, or early in 1805, but does not know the date of the receipt.

Daniel Holiis swore, that lie knows of four receipts, one paid to M‘Crae and Cantey, for about g 80 ,• one-paid by Moses Hollis for 50 j one of about 60 *;*and one of 35 or g> 40 *;*and that he got the four receipts the day Lis father went to court to settle with Mr. Ellison, and gave them to his father to take with him. He believes the receipts referred to a note ¿ for he did not know of any other debt from his father to M‘Crae and Cantey. Has no recollection of the dates, nor does he know the handwriting of M‘Cracand Cantey. The receipts were in their name i and the notewastoM*'Crae, . Cantey & Co,

Mr. Nolt, for defendant, produced‘in evidence an old note, dated 13th Hov. 1800, to M‘Crae and Cantey for g 235 78 cts.; and the new note on the 1 Oth April i 804, is a mere renewal of the old note, with the interest calculated up.

I have been thus particular in reciting the testimony, because the case turns wholly on the evidence. I have compared the evidence on both sides, and I acknowledge, *125that I feci a difficulty in deciding. All the witnesses aro persons of 'credit, and I give fall credence to what they have said 3 yet their evidence leads to very opposite con-elusions.

I have no doubt that Mr. Ellison gave credit to the amount of the receipts which he saw 3 but it would seem extraordinary, that a man carrying four receipts to make settlement should produce but two of them 3 — .and I cannot doubt, from the defendant’s positive answer on oath, that he had made four payments on the note 3 especially, as that answer is corroborated by the testimony of W. Hollis and Daniel Hollis.

Some stress was laid by complainant’s counsel, on the fact that the note is to M‘Crae, Cantey and Co¿ and that the witness swore tlie receipts were by M‘Crae and Cantey. But that is obviated by observing that they do not appear to have been very exact in their attention to the names of the firms in their dealings 3 for the first note is to Duncan M-'Crae and Zach. Cantey, yet the renewal is to M'Crac, Cantey and Co. and there is a memorandum at tiie bottom of the note, tiiat it is for M‘Crae and Cantey.

.Blanding for complainant. Nott for defendant.;

*

 Mr. Elison states ¡'.II these f-\c.t§ on his oath, and iü enh 'elyv.n-icoati-adicted in them.

Upon the whole, it appears to me, that there is sufficient evidence to induce a belief, that four payments were made, amounting to a sufficiency to discharge the debt, whether the receipts Were produced to Mr. Ellison or not. And if there was even more doubt than there is of that fact, yet as a settlement has been made, aud the defendant is in possession of a receipt in full, I do not think the evidence in the case would justify meto distil ib tiiat settlement.

The petition must be dismissed with costs of suit.

There was no appeal from this decree.