Collins v. Phelps , 3 Day 506 ( 1807 )

Brainerd, J.

The question is, whether, from the facts disclosed in the declaration, it appears that an action of account ought to be brought? These facts ne--cessarily imply that the defendant has an interest; and the proper action is account. * £

Trumbull, J., This action is brought expressly for yoo dollars. If the defendant disclaims all charges, all hires ; if he has- had this sum clear of all claims, per* haps spch evidence is admissible under this declaration.

Swift, Pr. J. I should think assumfide in this case would He; but the opinion of the court is, that you can prove nothing but an express promise.

The plaintiff’s counsel then offered in evidence an endorsement made by the defendant on a note from Samfi* son and Foster to him in these words ; “ January, 11 s 1803. Received in goods, book debts, and money; six hundred and thirty dollars in part of this note.

« E. W. Phelps ”

This evidence being objected to,

The Court ruled it inadmissible.

The plaintiff, failing in any further proof, was

Nonsuited.