¶1delivered the opinion of the Court:
¶2The assignment of errors in this case questions the correctness of the third instruction given for the defendant below. It is this: “ The taking of a note by a party, is evidence of itself, unexplained, of a settlement of all accounts existing between them at the time such note may be given, proper for the consideration of the jury.” This instruction presents the question whether the giving a note, of itself, unexplained, is evidence of a settlement of all demands between the parties to such an instrument. We think it is not such evidence. That it is evidence for the consideration of the jury, and is to be weighed in the light of all the surrounding circumstances, is undeniably true; but the simple fact that a note was given, cannot be regarded as proving such a settlement. Inferences and conclusions are drawn from facts proved to exist, because other facts are known usually to attend the facts proved. If the general course of the business of the country was such that a note was never given, or was not usually given, except on a full settlement of all existing accounts between the parties, then the instruction would have been correct. But we know that such is not the business usage of the country.
¶3This rule was announced in the case of Ankeny v. Pierce, Breese, 226. The court in that case say, it is safer to require a party who resists a demand upon the ground that it has been paid, to prove in what manner it has been paid. And that slight evidence would, doubtless, be sufficient in such a case, to warrant a jury in presuming that the account was settled when the note was executed, but without any proof .of a settlement of accounts it is presuming too much to justify the court in deciding that the execution of a note is evidence of a settlement of all accounts between the parties. This decision has not been disturbed, and has been acted upon since it was announced as the correct rule. ISTor is any reason perceived why we should change a rule so long acquiesced in simply to make it conform to more recent decisions of courts of other States. It seems' to us to be based upon reason, well calculated to promote justice, and no necessity exists for a change of the rule. The opposite rule would work hardship, if not manifest injustice, in many cases. This instruction was well calculated to mislead the jury, and for aught we can see, may have produced the verdict on the trial below. The judgment is therefore reversed and the cause remanded.
¶4Judgment reversed.