Mr. Justice STRONG
delivered the opinion of the court.
We need not inquire whether the deposition of Adeline Fister, the wife of the complainant, was properly received, for, with her testimony, there is not sufficient evidence to support the decree of the court below.
The bill was not filed until December 15th, 1870, four years and a half after the alleged mistake. During that long period the complainant made no pretence that he had not received all the credits to which he was entitled. Constantly assenting by his silence to the correctness of the settlement, and of the judgment he had confessed, he conveyed several lots of ground to the defendants and others, that the proceeds of the sales thereof might be applied in payment, and it was not until after the death of the person who received the money which he now claims was not credited that this suit was brought. Certainly after such delay, and after such long apparent acquiescence in the correctness of the settlement, the evidence ought to be very clear that a mistake was in fact made, in order to justify unravelling what was done.
The settlement included several notes which the complainant had given for balances due from him, according to a, running account. This account had been kept in the books of Willett & Co., and also in a pass-book held by him. It is not contended that the judgment was not taken for the sums for which the notes had been given, or that the notes were for a larger aggregate than appeared to be due by the accounts kept, both iu the complainants pass-book and in the books of the defendants. The contention is that a payment was made by the complainant, which did not appear on any of the books, and which was not credited to him. The evidence of this is an undated receipt for $1500. But the books of the defendants show a credit given for that sum on the 30th of October, 1865, and in the pass-book there is an entry of credit for the same sum, under date of November 21st, 1865, as having been received October 30th. As the receipt itself is the only receipt which appears ever to have been given, except one for $800, dated October 20th, 1863, signed W. E. Clark, and as it states that the complainant had not his pass-book along when the payment was, made, it would seem to be a reasonable presumption that it refers to the payment made on the 30th of October, and which was afterwards, on the 21st of November, credited in the passbook. If so, there was plainly no mistake in the notes and none in the judgment. Then certainly the complainant received every credit which was his due.
But Mrs. Fister testifies that she saw the receipt in April, 1865, before the payment of October 30th was made. If she is correct in that, then the payment made in October was a different payment from that acknowledged in the receipt. But we are satisfied that her memory in regard to the time when she first saw the paper is at fault. There is nothing in regard to which a witness is more likely to be mistaken than in fixing the date at which a transaction long past took place. She was examined as a witness in 1871, nearly six years after the time when she says she found the receipt in her husband's pocket. When she found it, according to her own account, she did not think it of any importance. She " carelessly threw it in a drawer, and did not think any more about it for some time." .Then she put it in an old book and laid it aside, and did not take it out for a year. She did not call her husband's attention to it before he settled with the defendants. She " was not aware she had it." She " never showed it to her husband," though she knew when he went to make the settlement. She.did not think it was of any account, and there was no circumstance associated with her finding it that could have tended to impress the time upon her memory. She says she knows it was in April, 1865, because she was cleaning shad and wanted change; but she may as well have been cleaning shad in 1866 as in 1865. The same remarks are applicable to the testimony of Maria Clements, the daughter. She says she remembers it was in April, 1865, because her mother told her to remember, saying, " This is the way your father has been doing business. He takes a receipt without day or date. Now, we will remember this." Bather inconsistent this is with the testimony of the mother, who declares that she thought the paper of no importance. It may be these witnesses have persuaded themselves they saw'the receipt in April, 1865. They have often talked the matter over with each other. But there are many improbabilities in their statements. Mrs. Fister says she was in fact her husband's banker. She chiefly made the payments. She even goes so far as to say that she sent to the defendants, in January or February, 1865, $1500. Not, indeed, in one sum. Her language is: "I wrapped up one roll of $600 with red string, and I took a piece of flannel and tied up another bundle of $900 with it. He (her husband) put the $600 into his side pocket, and the other bundle of $900 into his pantaloons pocket." Such a minute recollection of a six-year-old transaction is almost too l-emarkable to be credited. But it is still more remarkable that neither the husband nor the wife discovered that they had no credit for so large a payment. The accounts show that on the 28th of February, 1865, on the transactions running through the months of January and February there was a balance of $2120.19, for $2000 of which he then gave his notes. If he had made the payment which he now asserts, the balance would have been only $620.19. It is incredible that he would have given notes for $2000 under such circumstances, -for the payment must then have been fresh in his recollection. In addition to this we have the habit of business between the parties during the years 1864 and 1865, exhibited at large in the defendants' books and in the complainant's pass-book. If $1500 were paid in any month in addition to the sums credited, it would have been entirely outside of the usual course of business.It must have made an impression upon the complainant's memory when he gave the notes and confessed the judgment.
Looking, therefore, at the probabilities of the case as deduced from the evidence, at the long delay of the complainant to assert any claim, and at the fact that Mr. Willett had died before the bill was filed, we think there is no sufficient proof of a mistake to wárrant a decree sustaining to any extent the complainant's bill.
Decree reversed, and the case remitted with instructions to
Dismiss the bill.