The judgment of the court was pronounced by
SninuLi,, J.This suit is brought upon a note made by the defendants, jointly and severally, to the order of George Henderson, dated and payable in Mississippi. The plaintiff acquired the note under execution and judicial sale, for the price of $100, in an attachment suit brought by him against Henderson, the payee. This is the only collection which Murray has been able to make upon his claim against Henderson for $10,000, due since I4th May, 1838.
The defence is payment, and to establish it the defendants rely upon a receipt, under private signature, purporting to bear date at a time anterior to the levy of the attachment, and also to the maturity of the note, by which Henderson acknowledged to have received its amount from the makers, and promised to deliver the note to L. Gibson, one of them, “as soon as convenient.” The statute of Mississippi concerning bills and notes, was offered in evidence.
The law of that State must control the contract, it being made and payable there. That State places promissory notes and bills upon a very different footing from that which they have under the law merchant and statutes of England, and of most of the States of the Union; and we shall assume, for the purposes of our present inquiry, that, under the statute of Mississippi, a payment made to Henderson by the Gibsons, prior to the acquisition of the note by the plaintiff, even though unaccompanied by a delivery of the note to the makers, would be an effectual bar against the plaintiff, or any other innocent holder, withou notice. The proof of payment rests mainly upon the receipt, the testimony of Henderson, and the answers of one of the makers to interrogatoiles.
The receipt, being under private signature, has, per se, no date against third persons. To give it effect, it was necessary to prove the time of its execution. Under the laws of Mississippi, a payment made prior to the acquisition of the *314note by the plaintiff, would bind him; but a payment subsequently made, would create no equity. Non constat, by the mere writing under private signature, that it was not subsequently given to defraud the plaintiff. We must look, then, to the proofs aliunde; and here the first inquiry is, what weight is to be given to the testimony of the payee of the note.
It is urged by the defendants that the interest of that witness was equally balanced. That if the plaintiff failed in his action on the note, by reason of the alleged payment, the credit of $100 (the price of the note at the judicial sale in the attachment suit), acquired by the defendant in execution would be rescinded, and that this was a counterpoise of his liability to the present defendants, under his covenant in the receipt, if they should be condemned in the action to pay the note a second time. But it is obvious that there was not an equal balance. In the one case the witness would lose $100; in the other, he would become liable for $5,159 27, with eight per cent interest from maturity, and costs and charges incuwed in the defence of this action. The difference is at least as one to seventy. The witness was interested to the amount of this great excess. The judge of the court below appeals to have disregarded his testimony, and we are not prepared to say that in this there was error.
The answers of Gibson to interrogatories do not establish the time of the execution of the receipt, nor the fact of payment, and the character of the answers is not, in other respects, such as to aid the defendants’ cause.
It is urged that before Murray purchased the note, at the judicial sale in the attachment suit of Murray v. Henderson, he was warned, by the intervention of the Gibsons in that suit, of the defence now set up, and was a purchaser with notice. If payment be not proved, notice that the makers would resist a future action upon the note on that ground, appears to us immaterial. But, besides this, it is not to be said that the rights of Murray rest on the judicial purchase alone; they rest upon the antecedent attachment, of which the judicial sale was the complement, and an equity acquired after the attachment could not operate retroactively upon rights acquired by the attachment.
Upon a careful consideration of the evidence, we are of opinion that the payment has not been proved ; there is, on the contrary, just reason to believe what has been so forcibly urged by the counsel, that the receipt was an after thought and contrivance to defeat the plaintiff’s recovery.
We concur with the judge below that no valid defence has been established, and consider his decree as having done justice in the cause.
Judgment affirmed.