JACKSON v. WINCHESTER - 4 U.S. 205 (1800)
U.S. Supreme Court
JACKSON v. WINCHESTER, 4 U.S. 205 (1800)
4 U.S. 205 (Dall.)
Jackson et al.
Supreme Court of Pennsylvania.
March Term, 1800
THE following points occurred in this case:
1st. The issues in this case were joined on pleas of non assumpsit, and payment. When the jury were about to be impanneled, the defendant's counsel moved to strike out the former plea, by which (leaving only the affirmative plea of payment) he would be entitled to the conclusion, in addressing the jury. The plaintiff's counsel objected, with an allegation, that upon the issues, as they now stood, they had been obliged to send a commission into another state, to prove the sale and delivery of the goods, for which the action was brought.
And the COURT refused to allow the plea of non assumpsit to be struck off. [Footnote 1]
2d. The defendant alledged, that the plaintiffs had agreed to take payment of the debt, for which the action was brought, in Tennessee militia certificates, if David Allison approved of it. Allison approved, in writing, of the proposed payment, and the certificates were delivered to him; but it became a question, how far that delivery was satisfaction to the plaintiffs? And Allison being dead, M. Levy, offered himself as a witness to prove, that on a question of bail, before M'KEAN, C. J. Allison deposed, that the plaintiffs had debited him with the amount of the certificates, in their account current. The plaintiffs' counsel objected to the evidence.
And, by the COURT:
Nothing that passed before the Judge, on the question of bail, can be evidence on the trial, unless it was clearly admitted, as a fact, by the party.
W. Tilghman and Hallowell, for the plaintiffs.
M. Levy and Dallas, for the defendant.
Footnote 1 While this work is in the press, the same question has just occurred in the Circuit Court of the United States; and the Judges decided, that where the pleas were non assumpsit, and payment, the defendant might, of course, strike out the plea of non assumpsit, without applying to the Court, at any time before the jury were actually sworn. They said, it operated to relieve the plaintiff, from the necessity of proving the assumption, and was, therefore, for his advantage. But they distinguished it from the case of adding a plea, as essentially different; that case requiring the authority of the Court. Vuyton v. Brieulle, October term 1806. Dallas, for the plaintiff. Ingersoll and Du Ponceau, for the defendant.