The opinion of the Court was delivered by
Rogers, J.The note would not, of itself, afford any presumption that it was given for the book account; so that if the case rested on the first bills of exceptions, the Court was clearly in error. It is dated some time after the last item in the account, and is for a different sum; and there is nothing in the note which connects it with any previous dealings between the parties. The defendant alleges that he paid part of the amount 'at the time, and gave the note for the balance ; and in this way accounts for the difference in the sum. The defendant, it appears, has paid the amount due on the note; and the doubt is, whether there is any evidence in the cause which shows that the plaintiff’s claim, or any part of it, has been discharged. The proof may be conceded to be slight, but we cannot undertake to say that the Court erred in refusing the instruction prayed for by the plaintiff’s counsel. The evidence was fairly submitted to the jury, and if the plaintiff was injured, it was not the fault of the Court. In addition to the note, the defendant gave proof of the plaintiff’s course of dealing. He contended that when the plaintiff gave money on loan, the fact was uniformly noticed on the face of the note or instrument itself; and that when they were given for the sale of merchandise, the notes were in a different form. And of this course of dealing, some proof was given, from which an inference may arise, that the note was not, as is alleged, for money lent, but that it was given for the balance of the book account, the defendant having settled with the plaintiff, and paid the difference in cash. The note is dated the 16th of December, near the end of the year — a time when the merchants in that part of the state usually close their current accounts for the year, by taking notes from their customers for the amount due, which they are unable or it is inconvenient for them to pay. It was doubtless a circumstance which weighed with the jury, that the plaintiff withheld, or neglected to give in evidence his book of original entries, and relied on the fact, that at the trial before the justice, the defendant admitted the amount or items of the account, although, be it recollected, he at the same time insisted it had been paid. Had the plaintiff produced the book, non constat, but it might have appeared that the account was balanced by the note. It was calculated to cause some *169surprise, that the book which was the foundation of the claim, was not given in evidence, with the oath of the plaintiff to support it. Under these circumstances, I cannot perceive any error in the jury, in requiring some evidence of the consideration of the note, and in refusing to rely on the naked allegation of the plaintiff and his counsel, that the note was given in consideration of fifty dollars, cash lent, and for a small amount of merchandise, then purchased, and not charged in the book account. This cause has been twice tried, with the same result; and the only hope of the plaintiffs for a more favourable issue, rests on the attempt to rule out all the testimony. For this purpose, he insists that the Court erred in permitting evidence of the plaintiff’s general course or habit of dealing. The evidence which was admitted tended to prove, that when he took notes for money lent, he drew them in one way, and when for goods sold and delivered, he drew them in a different form. When the plaintiff lent money, he was careful to express the fact on the face of the note, a practice by no means confined to him, and pursued a different coursewhen taking notes for goods sold. That evidence may be given of the general course or habits of dealing of a particular individual, to affect him, is a principle pretty clear. In civil cases, and, indeed, criminal also, the most important presumptions are founded on the conduct of parties, whether of omission or commission. Of these, Mr. Starkie has given many instances, in his Treatise on Evidence, vol. 1 and 3, and pages 1254 and 34-5. Many presumptions are derived from the course and habit of dealing in a particular trade or business': so the course or habit of dealing of a particular individual may afford a presumption for or against him. These are. presumptions which a jury are most competent to draw, as they are for the most part founded on the common and ordinary experience of mankind, with which they are supposed to be peculiarly conversant. If in this instance the plaintiff departed from his usual course of business, the inquiry suggests itself, why was this done ? The plaintiff cannot complain, if some reason is required for the change — other than that it arises from inadvertence or mistake. These are, at any rate, legitimate arguments, which may properly influence the decision of the jury; and if they should find on insufficient evidence, the mistake may be corrected o.n a motion for a new trial.
.Judgment -affirmed.