Heman Fassett vs. Adi Vincent, 8 Vt. 73

The opinion of the court was delivered by Williams, Ch. J. The defendant should have been admitted to prove by his own oath, that the note specified was to be applied in payment of the plaintiff’s account, and that he had delivered it for that purpose to the plaintiff. The auditor was' probably correct in his opinion that a note is not “a proper subject of book account,” but erred in his application of that principle to the case in controversy.

If the articles, delivered by the plaintiff to the defendant, had been delivered and received in payment of a note, no action on book could be sustained for those articles. If a note had been delivered up by' the defendant to the plaintiff, in payment of the book account of the plaintiff against him, and been so received, it was as proper for the parties to testify to such payment in the action on book, as it would, to a payment in any other way or in any other article.

The offer made by the defendant, was to prove payment of the plaintiff’s account in this way, and we think his testimony to that effect should have been received. The judgment of the county court must, therefore, be reversed and the cause again refered to the same auditor to report at the next term.