The defendant, the master of a packet, in the employment of Burrell and Hubbell, received of the plaintiff a sum of money to carry to the city of New-York, deliver to L. and C. Suydam, and obtain their receipt for the same. Whether he performed the trust, thus assumed, was the question for determination. The defendant claimed, that he paid the money to the Suydams, and took their receipt therefor; and that it was delivered to one Byington, the agent of the plaintiff. The plaintiff adduced Byington as a witness, who testified, that he frequently had called on Burrell and Hubbell for the above receipt, but could never obtain it; and that neither the defendants, nor the said Burrell or Hubbell, had ever delivered to him any paper purporting to be a receipt. To prove the payment of the money, and to impeach Byington, by showing, that the receipt had been delivered to him, the defendant offered Hubbell as a witness, who testified, that he had no knowledge of the receipt in question, but that soon after the delivery of the money, Byington called at the store of himself and partner, and enquired if they had obtained the above receipt. He answered, they had; and taking a paper from a drawer, he gave it to Byington, who looked upon it, and then, without any remark, put it into his pocket-book. Hubbell further testified, that he had no knowledge of the hand-writing of the Suydams, nor of the contents of the paper delivered. This testimony the court rejected, undoubtedly, on the ground of irrelevancy.

If the evidence of Hubbell possessed any weight, even in the minutest degree, it should have been received, and submitted to the consideration of the jury, who are the only legal judges of the force and extent of testimony. Gibson & al. v. Hunter, 2 H. Black. 187. 205. That the evidence was of some weight, is past all question. It is not unreasonable to presume, unless the writing delivered by Hubbell were produced, or the nature of it established, that it was the receipt of the Suydams, for the money paid to them by the defendant. It is true, Byington testified, *273that no paper was delivered to him, by Hubbell or Burrell, purporting to be such receipt. But what was the paper received by him of Hubbell? This question demands a direct and satisfactory answer. Another enquiry, of course, suggests itself; and that is, why Byington, who had demanded this receipt of the Suydams, and in answer to his request, received a paper taken from the draw in the store of Burrell and Hubbell, and who, after inspecting it, put it into his pocket-book, did not return it, if he had not obtained the object of his search. It is presumable he knew the hand-writing of his principal; and that he acted as every reasonable person would act, if the receipt was actually delivered to him, and not as no man of sense or integrity would conduct, if the paper received were not the receipt in question. The act of Byington, and his silence after an inspection of the writing, are most expressive; and instead of furnishing no inference, supply evidence of no inconsiderable weight. Clear I am, that the testimony was essential, and ought to have been received.

New trial to be granted.