John Hancock versus Zebedee Cook, Junior, 18 Pick. 30

Shaw C. J. delivered the opinion of the Court. Several questions were raised and argued in the present case, which we have not thought it necessary to consider, because there is one point which we are of opinion is decisive of the case. It is not denied, that if an account has been closed more than twenty years and no dealings have occurred within that time, a presumption of payment arises as well where the account is between merchants, as in the case of other accounts.

It is manifest that this account, except one item on the debit side, and one on the credit side, had existed more than tu’enty years before the action was brought. The item on the debit side could not be considered as reviving and drawing down the account, because it was a small item, not apparently of a mercantile character, and more especially as the defendant had then ceased to be concerned in trade. The balance being then much against the defendant, this charge was not necessarily to be considered as an item in the old account, but rather the commencement of a new account, as between merchant and customer.

It then rests solely on the item of credit entered by the plaintiff himself in his books, and the books verified by his own suppletory oath, according to the usage of Massachusetts and some other of. the New England States. It is contended, that this is like the case of a security apparently barred by the statute of limitations, but having an indorsement thereon, purporting to have been made within six years before the action brought, which has been considered evidence to go to the jury, to avoid the operation of the statute of limitations, and rebut the presumption of payment.

But the correctness of this rule has been much questioned, and it has been construed strictly and allowed with considerable limitations. It has been considered evidence to go to the jury, to consider whether the payment was in fact made at the time which the indorsement imports. The jury are to inquire into all the circumstances, and to ascertain from them, whether the indorsement was made at the time of its date. In Lord Tenterden’s act this rule was in effect repealed.

But without affecting that rule, we think the plaintiff’s credit entry in his own book, verified by his own oath, is not competent evidence to prove a payment on account at that time, to rebut "the presumption of payment arising from the lapse of twenty years. It would be carrying a rule, allowing a party to make evidence for himself, much further than it is carried, by allowing an indorsement to be received as evidence of payment. An indorsement is nominally a substitute for, and in nature of, a leceipt given to a party, and put upon the security so as to discharge and extinguish it, pro tanto.

But the admission of the evidence relied on here would be extending a rule, peculiar to this Commonwealth, of very questionable propriety, contrary to the rule and the policy of the common law, and one which courts have always been disposed to restrain within the limits prescribed to it by the usage in which it was founded. This evidence being inadmissible, a new trial must be wholly unavailing, and therefore there must be judgment on the verdict for the defendant. It is now repealed in Massachusetts. St. 1834, c. 182, § 3; Revised Stat s. 120, § 17.