Gassaway v. Jones

Decided October 15, 1822

Assumpsit, against the indorser of a promissory note. The defendant after the suit was brought, told a stranger (Z. W.) that he was ready and willing to pay the debt if he knew the amount of the costs. contended that the promise to pay, is prima facie evidence of due demand and notice, and of the defendant’s indorsement; the note having been filed in the clerk’s office before the acknowledgment, although there was no evidence that the defendant had seen the note.

Decided 1822-10-15

The Court

¶1(nem. con.) said that the note could not be given in evidence upon that testimony.

¶2But the Coukt

(Moksell, J., contra,)

¶3at the request of the plaintiff’s counsel, told the jury that the acknowledgment was evidence upon the money counts.

¶4The jury thereupon found a verdict for the plaintiff, for $120, (the amount of the • note,) upon the count for money had and received.

¶5The Court, however, upon further consideration, at the motion of the defendant’s counsel, granted a new trial, being of opinion that the last; instruction given at the trial was erroneous.

¶6The plaintiff had leave to amend his declaration.