#### John Ankeny, Appellant, v. James Pierce, Appellee.

APPEAL FROM JACKSON.

The execution of a note is not evidence of a settlement of all demands due from one party to the other, anterior to the date of the note.

Opinion of the Court by

Justice Lockwood.

Pierce sued Ankeny in the Jackson circuit court, on a promissory note. The defendant below pleaded payment, and on the trial of the cause, proved an account for goods sold and delivered previous to the execution of the note.

Whereupon, the plaintiff below moved the court to instruct the jury, “that the execution of the note sued on was evidence of a settlement of all' demands due from plaintiff below to defendant below, up to the date of the note, unless the defendant had shown, by evidence, that the demands were not settled at the execution of the note; ” which instructions the court gave, and the defendant below excepted, and brought the cause into this court by appeal. The only question presented to this court for its decision is, whether the instruction prayed for ought to have been given ? In a case where the only proof consists in the production of a note on the one side, and evidence of an account anterior to the date of the note, on the other side, it is very difficult for the court *290to lay down with precision any general rule applicable to such cases. The court have not been referred to any adjudged cases, or any principle of law, analogous to such a state of facts, nor have they been able to find any authority on the subject. The court, therefore, in the absence of authority, must decide this question agreeably to the dictates of justice and common sense. A knowledge of the manner in which men generally transact their business, is necessary in arriving at a correct conclusion to the question presented in this case. Experience informs us, that notes are frequently given as the consideration for a particular trade, without any reference to the situation of the accounts between the parties—leaving them to be settled at some future time, or in some particular manner. And notes, also, are given on the settlement of accounts, and for the balance due on such settlement. Are there, then, in the dealings among mankind, sufficient uniformity in relation to the execution of notes, to authorize the court to decide that a legal presumption is thereby raised that all previous demands are released or settled ? The court believe, from their experience and observation, that injustice would too often be done if they should sanction such a general rule.

Cowles, for appellant.

Baker, for appellee.

It is safer to require a party who resists a demand upon the ground that it has been settled or paid, to prove in what manner it was paid. Slight evidence would, doubtless, be sufficient in this case, to warrant a jury in raising a presumption that the account was settled when the note was executed, but without any proof of a settlement of accounts and a balance struck, it is presuming too much to justify the court in deciding “ that the execution of the note was evidence of a settlement of all demands due from plaintiff to defendant.” The judgment must therefore be reversed with costs in this court, and the cause remanded, with directions to the court below, to award a venire de novo, (a)

Judgment reversed.

(a)

A receipt for rent due at one time, affords a presumption that the rent due at an earlier date has been paid. 3 Stark’s Ev., 1090.