Jewett v. Winship

The opinion of the court was .delivered by Barrett, J. The only question in this case is whether Winship was competent as a witness under the last clause of section 24 of chapter 36 of the General Statutes.' He claimed that he had paid $400 on the note that had been sued in this case, and the purpose for which he was offered as a witness was to prove such payment by authenticating a memorandum made in pencil in his pass-book, and then giving that memorandum in evidence. Without considering whether such a book, so kept, and containing an entry so made, falls within the purview of that provision of the statute, (see Lapham v. Kelly, 35 Vt., 195,) we are clear that there is another reason why he should not have been admitted to testify as proposed. His assumption and claim was that the money named in his pencil memorandum was delivered to Mr. Peck as a payment on the note in suit. If a payment, then it was never a subject for book charge, and could not give right of action in any form. Its effect was completed when received as payment on the note, and it was to; diminish the amount due on .the note by so much. It thus became ; the proper subject matter of defense in an action on the note, but not the ground of an independent action, nor of offset, either by plea or declaration on book, in such action on the note. It was available only as payment, by way of plea, or independently of [206] our statute in- that respect, as matter of proof under the general issue. The case of Slasson v. Davis, 1 Aik., 73, is directly in point. Such is the doctrine in Strong v. McConnell, 10 Vt., 231, and Chellis v. Woods, 11 Vt., 466 ; Bronson v. Rugg, 39 Vt., 241. Those three oases alb mark the distinction proper to be made between what is a payment, operating presently to diminish or satisfy an existing- debt; and what, in order to operate a payment, is left depending on a future' application. In the latter instance, as was held in those cases, the transaction constitutes from-the outset the proper subject of charge, and for recovery after-wards, if the existing debt of the other party should be otherwise satisfied without such application being made. The judgment of the county court is affirmed.