
    Matthias Prest vs. David Mercereau.
    A mere entry made in a man’s book of account, of a settlement with another, is not, as against such other person, legal evidence of a settlement.
    This was a certiorari to the Court of Common Pleas of Middlesex, to reverse a judgment of said court, on appeal affirming the judgment of a justice, rendered against Prest, the plaintiff in certiorari. Upon the return of the certiorari, the following rule was obtained on the part of. the plaintiff. “ It being suggested that the court below, on the trial of this cause, admitted the defendant, David Mercereau, to give in evidence his open account, and that he totally failed to prove his stated account, it is ordered that the plaintiff, Matthias. Prest, be allowed to take affidavits upon the above points.” In pursuance of this rule the plaintiff took the affidavit of Charles Francis, -who swore that he- was a witness on the trial of the cause before Aaron Gulick, justice, and also on the trial-of the appeal; that the same evidence was given on the trial of the appeal as in the court below, and no other. James Conover, .on the part of Prest, proved his books of account, from which his account was taken. Those books were admitted and read in evidence in both courts. Uo witness was offered before the justice, on the part of Mercereau, to prove the books of Prest incorrect; nor were .the books or any^of the items in Prest’s account impeached or disputed by Mercereau. A short *269] *time-before this suit was commenced, witness was present when an attempt was made by the parties to settle their accounts. The account and the books of Mr. Prest were then gone over. Don’t recollect that Mercereau found any fault with Prest’s account. At that time Mercereau had his books of account there, and witness saw the parties examine them. Prest found fault with those books, and said there was something mysterious about them which he did not understand. He found fault with one note in particular, charged by Mercereau against Prest, and also with a charge of some interest. Mr. Prest expressed doubts about a number of the items, and enquired about them. The parties at that time broke up without coming to settlement. Was never present at any other attempt to settle by the parties. Witness saw no memorandum of a settlement made by either of the parlies at the time above spoken of. lie sat close by them during the time, aud thinks if any had been made he should have seen it. Mercereau cast up the accounts as he considered them to be at that time, and made a balance of six dollars in his own favor, which Prest did not agree to. What witness has now testified to is in substance the same as sworn to by him on the trial of this cause below. Samuel S. Cain was also present when this attempt at a settlement was made. Adam Smith was called by Mercereau to prove his books. Proved nothing else by Adam Smith except his books of account.
    The affidavit of Samuel S. Cain, was also taken who swore that he was a witness on part of Mercereau at the trial of this cause before the justice, and also on the appeal. Charles Francis and Adam Smith were also witnesses on said trials on the part of Mercereau. James Conover was a witness for Prest, called to prove his books, and did prove them by him. The books of Prest were read in evidence in both courts. Mercereau offered no witness to prove tho books of Prest false or incorrect. Was present at an attempt between Prest and Mercereau to settle their accounts a short time before this suit was commenced. They did not settle at that time. Witness’ recollection of the facts that took place at the time this attempt was made, is the same as stated above by Charles Francis, and so testified on the trials of this cause. Adam Smith was called by Mercereau to prove his books, and proved nothing else by him. Mercereau did not attempt on the trials of this cause to prove any other settlement than the one above testified to by ["*270 witness and Frencis. On the above occasion witness saw no writing of a settlement made by either of the parties. Was present during the whole time till they parted.
    The state of demand filed by Prest, and the set off by' Mercereau, were both mere copies of their books of account; and in the set off there was one item in these words : “ Nov. 5. To balance on settlement of book account, $6.42.”
    
      Wood, for the plaintiff in certiorari,
    moved to reverse the judgment of the Common Pleas, because the court had allowed the whole of Meroereau’s account, including the item of “ a balance due on settlement,” when there was no evidence of a settlement of book account produced on the trial, except the defendant’s book of account.
    
      Hardenbergh, for defendant.
   The Chief Justice delivered the opinion of the court.

The reason assigned for the reversal of the judgment in this case is, that one of the items of the account of Mercereau, exhibited by way of set off and for which he obtained judgment, is for a specified sum, “a balance due on settlement of book account, November 5th, 1824;” and that on the trial in the Court of Common Pleas, Mercereau gave no evidence of a settlement of book account, or of a balance due him on such settlement.

In M'Henry v. Forsyth, Penn. 1002, this court decided that such a charge in an account or state of demand is sufficiently specific; to support it, however, proof of an actual settlement must be made.

■From the affidavits read before us it appears, that on the trial Mercereau produced in evidence his book of accounts, and examined three witnesses, one of whom, Adam Smith, proved his book and nothing more. The other witnesses Charles Francis and Samuel Cain, so far from proving a settlement, testified they were present at an attempt between the parties to settle their book accounts, but that no settle-meat was made. And it appears that Mercereau did not offer or endeavor to prove any other settlement than that attempted to he made in the presence of Francis and Cain.

It was said, the books of Mercereau are not brought here, and there may have been in them an entry of a settle-*271] ment. But if *there be, a mere entry made by a man on his book of a settlement with another, is not, as against the other, legal evidence of such settlement.

It was correctly stated by the counsel of the defendant in certiorari, that this court will not weigh the evidence given in the court below, nor enquire whether that court decided rightly upon controverted matters of fact. But that rule does not apply on the present occasion. Evidence of a particular character was required to support the demand as stated. No such evidence was produced. The judgment was founded on evidence of a different nature. The question here is, whether tho facts as proved, Avere sufficient in law to support the demand. We are of opinion they Avere not, and the judgment should therefore be reversed.

Some objections were raised on the argument to the manner in which the case is brought before us, being by the affidavits of persons who were examined as witnesses in the court below. In this respect we find nothing illegal. No state of the case having been made, the affidavits were taken, under a rule of this court, of two of the witnesses called by Mercereau in the Court of Common Pleas, who relate what évidence Avas produced there.

Let the judgment be reversed.  