CHARLES BROWARD AND WILLIAM EUBANKS

v.

MARIA DOGGETT, EXECUTRIX OF JOHN L. DOGGETT

Baltzell, Justice:

The Court below erred, we think, in the instructions given to the jury in this case. According to the admission of plaintiff, her testator was employed to collect money due the estate “on a considerable number of noles” which were deposited in his hands. Broward, one of the defendants, agreed to give the testator Doggett “ ten per cent, on all money collected.” Now, it is obvious that this agreement extended as well to the notes deposited as to the compensation, yet the Court instructed the jury “that there %was no express contract proved, except as to the rate of compensation to Dog-gett for collections, to wit, ten per cent.*’ It should, in our opinion, have been left to the jury, whether this agreement for ten per cent, did not embrace all the notes which Doggett had in his possession belonging to the estate, whether collected through means of suit or otherwise.

The second instruction is as to the effect of the notes and receipts. In reference to these, the Court say, “ they were not of themselves evidence of a settlement or account stated between them, but the jury might consider them in connection with other testimony tending to show that there had been such settlement or account; that it was most probable, so far as the Court was capable of judging of the evidence, that these notes were given to be accounted for separately, with a view to a more precise and careful administration of the estate, and to distinguish it from the private and individual transactions of the executors with Doggett, and that the jury need not consider it in any other point of view.

The effect of this would seem to be to destroy the weight of both the notes and the receipts. Now, we know no grounds upon which such a course may be justified. They were both in evidence and a part of defendants’ case, who were entitled to the benefit of them as far as they tended to prove a fact, or conduce in any degree to their defence. It has been insisted here, that the notes were evidence of an account stated. Without enquiring into the correctness of this position in general, it is sufficient to say, that by the admission of the parties, they were given for the hire of negroes by Doggett, so that pr esumption as to the cause of their execution may not be indulged. The receipts present greater difficulty. They are evidence of an acknowledgement of payment of the sums specified, and have probably had this effect already in the case in which judgment has been rendered against the estate of Doggett. Whether a jury could infer that the receipts were evidence of payments on account of those services rendered by Doggett to the estate, for which payment is now claimed by his executrix, is of more difficult solution. The presumption is, that a debtor will pay his debt, through an indebtedness of his creditor, in preference to making a payment in cash. This is the usual and ordinary course of business, and we, therefore, incline to the opinion, that defendants were entitled to the benefit of this presumption, however slight, leaving it to be rebutted or explained by other testimony. In denying this weight to the receipt and notes, and in excluding them from the jury, as was virtually done by the instruction given, we think also the Court erred.

We do not think the objection to the want of damages at the conclusion of the declaration is available, after verdict and judgment, especially where there is sufficient in the writ, as in this case, to cure the defect.

The judgment will be reversed, and the verdict set aside, and the cause remanded for further proceedings, not inconsistent with this opinion.