Clarke v. Magruder

Unless the contrary >■. proved, it is presumptive evidence that a clerk, who is dead, and who made certain entries on the books of hi* employer, delivered the ftoocU, as charol d The defendant may set the plam'jfidtm ml, a note of the pi. mtiir’s accrued subsequent to the comintncemem of the uccon

Appeal from the General Court. This was an action of assumpsit, brought by the appellees, (the plaintiffs in the court below.) for goods sold and delivered, &c. The writ issued on the 9th of March 1799, and at May term 1803, the action was entered for the use of Samuel Johnston, and others. The defendant, at October term 1799, pleaded non assumpsit, and issue was then joined. He afterwards, at October term ! 801, filed an account in bar, and gave notice of a set (Jf. 1. The plaintiff, at the trial at October term 1804, produced ti¡e original partnership day books in court, and a witness to prove the hand writing of the clerk who made the entries in the books, the clerk being dead. This was resisted by the defendant’s counsel, Chase, Ch. J. The court hare no doubt upon the subject. It is to be {¡resumed, the entries being made in the hand writing of the clerk, that he delivered the goods as charged. The defendant may prove the contrary, and if he does not, it is presumption, on the pari of the plaintiffs, that the clerk who made the entries on the books delivered the goods. 2. The plaintiffs then read in evidence the original writ which issued in this case on the 9th- of March 1799, (there being no endorsement at that time for the use of Samuel Johnston, and others,) and that it was served on the 19th of April 1799, with a copy of the declaration and account,: and gave in evidence, that at October terra 1799, the pies of non assumpsit was put in, and issue joined in the cause. They further gave in evidence, that the defendant was indebted to them on the 13th of August 1798, for goods, wares and merchandizes, to him sold and delivered before that time, ii^the sum of A381 10 3-¿ current money. The defendant then offered evidence to prove, that on the 24th of August 1798, he paid the plaintiffs the sum of A98 12 6 current money, pari of the debt due to them; and that, by his counsel, lie gave notice of a set off at October term 1801, of the following note, with the endorsement thereon: “Baltimore, October 29, 1799. For Dollars 1270 92. Six months after date we promise to pay to Mr. P. 1). Goverts, or order, one thousand tw& hundred seventy dollars and ninety-two cents, for value received. Win. B. Mc.gruder & Co.” Which note was thus endorsed: “I hereby assign and make over all my right, title, claim and interest, of the within note, to Bailey E. Clark, for value received, l\e clearing me of my indorsement, and all possible consequences. Peter D. Goverts.’* And the defendant proved the signature to the note* uWm. B. Magruder, %• Co.” to be the signature and proper hand writing of the plaintiffs, and the hand writing and signature of Peter D. Goverts, to whom the note was made payable. He also gave in evidence, that the entry on the docket of the plaintiff’s cause of action for the use of Samuel Johnston, and others, was made at May term 1802, and not before. The plaintiffs then produced and read in evidence, by and with the consent of the defendant and his counsel, the certificate of Peter B. Goverts, to prove that the defendant, on the 16th of May 1800, and not before, purchased the note from him for the sum of g225. “Baltimore, September 12, 1803. I, the subscriber, hereby certify to have sold to Mr. Baley E. Clarke, on the 16th of May 1800, Messrs. Wm. B. Magruder, fy Co’s note of hand, drawn in my favour, and amounting to dollars 1270 92 cents, dated October the 29th, 1799, six months after date, for the sum of 8225, in consideration of he the said Clarke not holding me responsible for my indorsement. Peter D, Goverts.” The plaintiffs then prayed the opinion of the court, and their direction to the jury, that the defendant could not avail himself in law of the note so made and endorsed to 4 . . mm as a sel olí in bar to the residue of their claim.