The opinion of the Court was delivered by
Moses, C. J.There are certain errors of fact in the report of the presiding Judge, made manifest by his statement of the testimony, which it is better now to note.
*106The bond sued on was made payable to Jacob Bond I’On, and not the executor, plaintiff here.
The assignment referred to in the report was endorsed on the bond in 1865, and dated February 10th, 1860.
As this case must be sent to the Court below for another trial, we shall refrain from all intimation of opinion as to the testimony already heard.
The grounds of appeal, however, must be considered, although a solution of the principles which they involve would not, in itself, be conclusive of the issues made by the pleadings ; yet the points raised under them are considered by the appellants as bearing on the main position on which a new trial is claimed.
, It is alleged in the third ground that the plaintiff seeks a recovery under a written endorsement, and should not be allowed to explain it away by verbal testimony. This appears to be a clear misapprehension. The only endorsement which could convey a legal tide to the bond would be by assignment. On the death of the obligee this vested in his executor, aud the transfer of it by the executor to himself, in his individual character, while it_ would be a most anomalous act, would not change his status as to the right to sue.
He, however, makes no claim by virtue of any assignment. The action is in his name, for the benefit of another. If he had transferred it to a third person, by a writing therefor sufficient, still such assignee could waive the right which he would have, under the Act of 1798, (5 Stat. at Large,' 330,) to bring action as assignee, and could maintain suit in the name of the obligee, or, if dead, his legal representative.— Cunningham vs. Miller, MS., Dec., 1820.
We do not feel ourselves at liberty to consider, in this connection, the effect of the endorsement of A. M. Huger, of date February 10th, 1860, but we must determine whether it could be explained by parol testimony. This constitutes the third ground, and our remarks will have the like application to the first, second and fifth grounds.
Did the endorsement constitute a contract, or an agreement, which could, in a Court of law, of itself, have any efficacy ? He was the principal obligor in a joint and several bond, which, it is to be supposed, on the day stated, in some way came into his possession. He had no legal title to it, so far as it was an instrument conferring rights on him against others. He, (the obligor,) if he undertook anything by the act, assumed some relation to the instrument *107■which, in his conception, authorized him to assign it to the executor of the obligee, adding, that “ he, the said O. T. Lowndes, had loaned him the funds to pay the same (the bond) to estate of Col. I’On.” If standing alone, unexplained, could any legal consequence be drawn from it? If so, then the question would have been reduced to a bare inference of law, on which it would have been the province of the Judge to pass. This would produce a result entirely destructive of the claim on which we regard the defendants entitled to a new trial.
Conceding, for the sake of argument, that it was a contract, was it one so free from doubt, ambiguity or equivocal expression as to preclude the introduction of parol testimony for the purpose of explaining its true intent and meaning ?
It is claimed, however, as a receipt. The rule, as to the admissibility of verbal testimony to explain a writing, admits of a much wider latitude, in regard to receipts, than it does to any other instruments.
So far as a receipt goes only to acknowledge payment, or delivery, it is merely prima faoie evidence of the fact, and not conclusive; therefore, the fact which it recites may be contradicted by oral testimony. — 1 Green. Ev., § 305, and the authorities there referred to.
As was said by Justice Williams, in Fuller vs. Crittenden, 9 Conn., 406: “The true view of the subject 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 shown at law, to destroy the effect of a receipt.”
Our own Courts have proceeded on this recognized principle. Hogg vs. Brown, 2 Brev., 223; McDowell & Black vs. Ex’rs of Vanderberg, 2 McC., 320; Dobbin vs. Perry, 1 Rich., 33; Lewis vs. Bell, 3 Strob., 260.
The sixth ground alleges that a date was added by the' plaintiff to the assignment after oyer craved and the instrument produced.
It is not necessary to inquire what effect, in the state of the pleadings, the addition of a date to the assignment might have had, if the action were brought in. the name of Izard, trustee, as assignee.
The purpose of prayer of oyer after proferí of an instrument is to have it produced, and thereby made a part of the record, that the party, by proper pleading, may avail himself of any discrepancy or dissimilitude between the paper set out in the declaration and that exhibited, or claim judgment of nonpros. If the true effect and meaning of the deed is misstated in the declaration, the *108variance is cured, and becomes immaterial if tbe deed be set out on the plea of oyer and non est factum pleaded. — 1 Chit. PL, 433.
Here the allegation is not that the bond is different in any way from that described in the declaration, either on its face or endorsements, but that, after it was so set out and oyer claimed, a date was added to the assignment. This would involve a principle of a very different kind from that embraced in questions, arising under the law, applicable to the practice in regard to profert on oyer.
It would open for inquiry, not necessary here, the effect of the change of the writing, either by alteration or addition.
In any view, however, the defendant can derive no benefit from the exception taken in the said ground, because the plaintiff does not rest his rights to a recovery on the assignment.
It does not follow, because force and effect ‘may not be given to the various grounds as presenting obstacles to a recovery, that, when taken together, they may not establish a sufficient right to the motion. •
In our conception, the presiding Judge appears to have regarded the issues submitted'as those of law for his judgment. If the verdict had been a special one, ascertaining facts, and leaving nothing to follow but his decision on the law, then he would have been in a position in which he could have ordered the postea to be delivered to the party in whose favor he pronounced judgment.
Presumptions, from evidence, of the existence of particular facts, are, in most, if not in all cases, mixed questions of law and fact.
Here the Judge left nothing for the jury to pass upon. In this, we think, he erred. True, the credibility of the witness was not involved; but yet the defendant had aright to the judgment of the jury on the effect of the facts, in writing, on the one side, and his explanation on the other; and who was to decide on the weight as tending to or producing conviction?
It is not to be denied that when it is clear, beyond dispute, that the facts proved can lead but to one conclusion, the Judge may state their legal effect to the jury, for then a deduction of law is to follow, and that is exclusively for him. We do not think that the consequence here.
Are the facts which may rebut the prima fade evidence of payment to be decided by the Judge, or is their force to be considered and passed on by the jury? As here, the endorsement by Mr. Huger, on the 10th February, 1860, shows that the bond was then in his possession, raising the presumption of payment. — 2 Green. *109Ev., 577. Who was to decide whether the oral evidence offered to rebut it was sufficient ? The Judge or the jury ?
If His Honor had charged on the conclusions of law to be applied to the case, as arising out of the testimony, viewed in the different aspects insisted on by the plaintiff and defendants, and instructed the jury to apply the law, as they might be, the one way or the other, impressed by the evidence, we would not have felt bound to disturb a verdict thus found. We fear, however, that the right of the defendants to a full consideration of the facts was abridged, and, therefore, regard them entitled to a new trial.
The views which we have expressed.render unnecessary any comment on the fourth ground. We have purposely avoided all remark on the seventh ground. Whatever benefit the defendants can derive, representing a surety, from the acts of the principal and obligee, must arise out of, and be determined by, the circumstances proved on the trial ordered.
The motion is granted.
Willard, A. J., concurred.