The opinion of the Court was delivered by
Royce, J.
It appears by the bill of exceptions in this case, that in the account of Josiah Davis, against the plaintiff, was an item of twenty-one dollars, which was alleged to have been delivered and received in part payment of the note now sued. Davis himself was offered as a witness to prove the payment of this sum, and was admitted by the county court, though objected to by the plaintiff. The Court are clearly of opinion, *74that this proceeding was wrong. To allow a party to charge on book, and prove by his oath, payments expressly made and received on a note, which is still outstanding, would be an alarming extension of the book action. The general rule has been ]ong settled, that the right to make a charge on book, must exist at the time of delivering the article, or performing the service; and cannot depend on the happening of subsequent events. But it is a contradiction to say, that this sum, being paid, and received to be applied on the note, could be delivered to be charged on book, and recovered back at the pleasure of the party paying. In this case, however, no change of circumstances has taken place between the parties, if that could be considered material; the note has not been otherwise discharged, but is still open for the application of this payment, when properly established. It is the subject matter of evidence under the general issue, or a plea of payment, but not of an action on book: and there is no difference, in principle, between a separate action on book, to recover back this payment, and the present declaration on book, in offset to the note. As the plaintiff is not allowed to prove, by his oath, the making of the note, so neither can the defendant, by his oath, prove the payment or satisfaction of it. On this ground,
Reuben R. Thrall and Chas. K. Williams, attornies for plaintiff.
. William, Page, and Gordon Newell, attornies for defendants.
The judgment of the county court is reversed, without entering upon the other questions presented by the record.