
    
      Samuel Barlow vs. Joseph S. Butler.
    
    iPhat a charge of a note of plaintiff on book, is proper when it appears to have been done at the time of a credit which makes such charge necessary.
    This was an action of book account, and came before the court On the report of auditors made to die County Court at their September term, 1827, and exceptions to that report. It appeared by the report of the auditors that the plaintiff's account contained a charge for a note of ‡37,50, dated December 4, 1819, which had been executed by him to the defendant and charged at the time it was given ¿ and that at the time this note' was charged a credit was .given to the defendant of anote given up of $105,28.
    It further appeared that after the report had been drawn up and signed by the auditors, one of them certified in writing, in addition to said report, “ Thai the charge of the plaintiff's note un- “ der date of December 4, 1819, was made on the plaintiff’s ori- “ ginal book of entries, as follows:
    “ December 4, 1819. Joseph S. Butler,. Cr. By my note “ given up which I gave B. Thatcher, including interest,, $105,28,
    “ Dr. To m-y due-bill, on demand, 37,50— u and that the appearance of the book, with the statement of the u plaintiff, under oath, Was tíre evidence showing that the entry was “ made at the same time by the plaintiff, and that it was all one transaction.” It appeared that on the trial before the auditors,, the defendant objected to fire charge of the due-bill or note of $37,50, before mentioned, on the' ground of its not being a proper subject of book-charge, and that the auditors overruled the objection and allowed the charge. The defendant filed objections in the County Court to the acceptance of the report of the auditors, for the reason before mentioned; but the objections did not prevail, and the report was accepted. The cause was brought to this court for a revision of the judgment rendered by the County Court.
    
      Smalley and Adams, for the defendant, contended as follows i In this case, two questions present themselves for examination. 1'. Is the statement of one of the auditors, appended to the report to be received as a part of the case? 2. Can a note, or due-bill,. given by the plaintiffto the defendant, be char-gedby the plaintiff on book? It appears by the auditors’ report and bill of exceptions, that the County Court received the statement of one of the auditors, made two or three months after the report was filed for acceptance, and objections had been filed to the same, to add to and vary the report drawp up and signed by both' of the auditors at the time ofhearing the case. The auditors at the time of auditing these accounts drew up, in the nature of a special verdict, a statement of the facts in the case on which the court were to render judgment. Will the court sanction a .practice which will authorize one of several auditors, after a statement of the facts in the case has been made out and signed by all the auditors, to make alterations to such statement, and receive the same as a part of the case submitted by the auditors ? A practice of this sort would leave most of our book actions at the mercy of every designing knave who should happen to have any influence or control over any one of the auditors, and instead of having the case presented as drawn up by the auditors in presence of counsel, we should have such a statement of facts as any one auditor, with the assistance of favorite counsel, should choose to present.
    3. The maker of a note or due-bill, cannot charge the payee with the amount of money specified in the note or book. If he •Can, it is a convenient mode of paying debts.
    
      Smith, for the plaintiff contended as follows: It appears from the auditors’ report the above charge on the plaintiff’s book was made at the same time when the plaintiff credited the defendant on his book the afhount of a note given by him to one Benjamin Thatcher for $105,08, which was given up by the defendant to the plaintiff, and that this charge of $37,50 was made to limit and qualify the credit given at the same time to defendant, and that the auditors considered it the same as if the plaintiff had deducted the $37,50 from the $105,28, and credited the defendant the balance of the large note. So the defendant cannot claim •the advantage of the credit without being answerable for the debt. 2 Aiken1 s JR,. 175, Harrington vs. Hall. The above charge and credit appeared to have been made in the plaintiff’s own hand writing on the book, and that the plaintiff’s oath and book were all the testimony there, was before the auditors on the subject; the defendant had no ■charge or receipt for the amount of credit.
    
      Smith, for plaintiff,
    
      Smalley and Adams, for defendant.
   Hutchinson, J.

delivered the opinion of the court. The fact? in this case are sufficiently contained in the joint report of the auditors. The after statement made by one of them is more particular, but does not vary the legal import.

The only question, therefore, to be decided is, whether the auditors did right in allowing a charge of $37,50 made by the plaintiff for hts own note of that amount given to the defendant. Ordinarily such a charge would not be properbut, as the auditors state this to have been done, it was proper. It appears that the defendant held a note given by the plaintiff to one Thatcher of $105,28 5 and he gave this note up to the plaintiff-to be cancel-led, and a part of it, to wit, $67,78, was to be placed as a credit to the defendant on the plaintiff’s book : and the plaintiff was to give a new note directly to the defendant for the balance, being $37,50. This was all done accordingly. But, instead of placing it exactly in that shape, the plaintiff at one and the same time gave the defendant credit for the whole $105,28 and charged him with the amount of the new note $37,50. This made the book balance just as it would have done had the $67,78 only have been credited, and no charge made of the note giveia. This makes tire book show the actual state of the transaction ; and justice requires that this item of charge should be allowed as was done by the auditors. The judgment of the -County Court accepting the report of the auditors, is affirmed with cost.  