Wakeman & Wakeman v. Bailey , 2 Hill & Den. 279 ( 1842 )

By the Court,

Cowen, J.

The only dispute at the hearing was, whether the draft should be allowed as a set-off; or whether it Avas a charge against Vaill, a former member of the plaintiff’s firm, but now deceased. On this question evidence was given by both sides, and we cannot disturb the report oh the question of fact.

To shoAV that Vaill in his life time, after taking the draft, had sent it to his firm as his oavh, the plaintiffs were alloAved to give in evidence his letter enclosing it and directing his firm to give him credit for it. Vaill being in possession of the draft, at the time of the written declaration, it was, I think, properly received as a part of the res gestee. It showed that he claimed the draft as his own; and tended to negative the inference sought to be derived by the defendant from the circumstances, that credit had been given to him for the draft, by the plaintiffs; or at least to negative the inference that the proceeds had come to their use.

That evidence was, I think, properly followed by proof that the draft was in fact applied to the credit of Vaill in his account with the firm. Such evidence concluded nothing; but was, I think, admissible among the other circumstances of the case.

Motion denied.