delivered the opinion of the Court.
The motion to quash the writs was properly overruled. Acts 1837, page 156. 5 Ark. Rep. 251. The plea of nil ticl'corporation, was properly stricken out. 4 Ark. Rep. 623. 1 Eng. 137. 2 Eng. 58.
The remaining question is, where an entry is made of a payment in the books of the bank, in part discharge of a note executed to the bank, can parol evidence be given of such payment without accounting for the non-production of the record entry ? It is true, as a general rule, that where there is written evidence of a fact, parol or secondary evidence is inadmissible. It is held, that written acknowledgments and receipts of payment, where the question of such payment is in issue, form exceptions to this rule. 2 Phillips Evidence, (Hill & Cornell's Notes,) 420. Southwick v. Haydon, 7 Cow. 331.
In this instance, however, the record would not have been legitimate evidence as decided by this court in State Bank v. Barber et al., at the present term. The parol evidence, then, was clearly admissible, and the proof positive. There was, then, no error in the judgment and decision of the Circuit Court in this case. Let the judgment be affirmed.