V

the said town, and who have no other property with- ALEXANDER in the said town." This is not, as has been said, a MAYOR, &c. direction to the officer of the corporation, but is a description of the precise case in which alone the remedy by motion is allowed. It being found that Charles Alexander had property in the town from which the officer could have levied the tax assessed on him, a motion for that tax was not sustainable. If the corporation did not choose to risk levying the tax by seizure, they might have instituted a suit to determine their right.

This court is unanimously of opinion, that the cir. cuit court erred in giving judgment for the plaintiff on motion, and therefore directs that the said judg ment be reversed and annulled.

HENDERSON v. MOORE.

ERROR to the circuit court of the district of The refusal of Columbia.

the court be

low to grant a new trial is not

error.

debt upon a

500 dollars, ev

smaller sum

an ac

On the plea of payment to an action of debt upon upon the plea a bond, for 500 dollars, dated in 1781, the defend- of payment to ant offered evidence to prove that in the year 1797 an action of the plaintiff acknowledged that he had received of bond condithe money of the defendant to the amount of about tioned to pay 1,000 dollars, of one Willoughby Tibbs, out of the idence may be amount of a decree which the defendant had ob- received of the tained against him for 3,000 dollars, and that the payment of a money which he so received was in full of all his with claims against the defendant, the plaintiff having by the plaintiff knowledgment paid for the defendant several sums of money. There that it was in was no settlement made, nor any receipt given. full of all de"Whereupon the plaintiff prayed the court to in- from such evistruct the jury, that if from the evidence they should dence, if unbe satisfied that the bond had not been fully paid the jury may off, no declaration of the plaintiff's that his claims against the defendant were all satisfied' would be a bar to his recovery in this action; which instruction

mands; and

contradicted,

and ought to infer payment

of the whole.

V.

HENDERSON the court refused to give as prayed, but directed MOORE. the jury that if they should be satisfied by the evidence, that the defendant, in the year 1797, paid the plaintiff a sum of money less than the amount mentioned in the condition of the bond, which the plaintiff at that time acknowledged to be in full satisfaction of all his claims against the defendant, such payment and such acknowledgment, are competent evidence upon the plea of payment, and that the jury may and ought to presume therefrom that the whole sum mentioned in the condition of the said bond has been paid to the plaintiff, unless such presumption be repelled by other evidence in the cause; to which refusal and instruction the plaintiff excepted."

The verdict being for the defendant, his counsel moved the court for a new trial, and grounded his motion upon sundry affidavits tending to prove that the whole amount of the bond remained due to the plaintiff, and that he was surprised by unexpected testimony at the trial. But the court refused to grant a new trial.

Two errors were assigned.

1. That the court below refused a new trial.

2. That the court ought to have given the instruction to the jury as prayed by the plaintiff; and ought not to have given the direction which they did.

MARSHALL, Ch. J. said that this court had decided at the last term, that a refusal by the court below to grant a new trial was not error.

The case being submitted upon the other point, without argument,

MARSHALL, Ch. J. delivered the opinion of the

court,

That there was no error in the opinion of the court below. A part of the money due on the bond

V.

MOORE.

might have been paid before; and such an acknow- HENDERSON ledgment, upon receipt of a sum smaller than the amount of the condition of the bond, was good evidence upon the plea of payment.

Judgment affirmed with costs,

COOKE AND OTHERS v. WOODROW.

ERROR to the circuit court of the district of In an action of Columbia, in an action of trover brought by the plaintiffs in error for sundry household goods.

rover, if the judgment below be in fa

vour of the original defend

in dispute up

supreme court

sum claimed as

A bill of exceptions stated that the plaintiffs on ant, the value the trial produced in evidence to support their title of the matter to the goods, a certain paper writing signed by one on the writ of John Withers, to which one John Pierson had sub- error in the scribed his name as a witness, and offered parol of the United evidence to prove that the subscribing witness had States, is the upwards of a year ago left the district of Columbia, damages in the and that before he left the said district he declared declaration. that he should go to the northward, that is to say, must be used Due diligence to Philadelphia or New-York, and said he had a to obtain the wife in New-York. That the said subscribing wit- testimony of the subscribing ness went from the said district to Norfolk, and that witness. when he got there he declared that he should If inquiry be go on made - at the further to the south, but where was not known, and place that he has not been heard of by the witness for the the witness was last heard of, last twelve months. It appeared that a subpoena had and he cannot been issued in this case, for the said subscribing be found, eviwitness, directed to the marshal of the district of dence of his hand-writing Columbia, but he could not be found in the said dis- may be admit trict by the said marshal.. The plaintiff then offer- ted. ed to prove the hand-writing of the subscribing witness and of the said John Withers to the said writing, but the court refused to permit the plaintiffs to produce evidence of the hand-writing of the said subscribing witness, and refused to permit the plaintiffs to prove the hand-writing of the said John Withers, otherwise than by the testimony of the said

where

COOKE

V.

WOODROW.

subscribing witness; to which refusal the plaintiffs excepted."

C. Simms, for the plaintiffs in error, suggested that this court must be satisfied by evidence (other than the declaration) that the sum in demand exceeded 100 dollars, exclusive of costs; and cited the rule made in the case of Course v. Stead's Executors, ante, vol. 1. P. 17.

But MARSHALL, Ch. J. said, that that rule applied only to cases where the property itself (and not damages) was the matter in dispute-such as actions of detinue, &c.

If the judgment below be for the plaintiff, that judgment ascertains the value of the matter in dispute; but where the judgment below is rendered for the defendant, this court has not, by any rule or practice, fixed the mode of ascertaining that value.

The point arising upon the bill of exceptions was submitted without argument.

MARSHALL, Ch. J. after stating the case as it appeared in the bill of exceptions, observed,

That the court had some difficulty upon the point. The general rule of evidence is, that the best evidence must be produced which the nature of the case admits, and which is in the power of the party. In consequence of that rule, the testimony of the subscribing witness must be had if possible. But if it appear that the testimony of the subscribing witness cannot be had, the next best evidence is proof of his hand-writing. In the present case it does not appear to the court that the testimony of the subscribing witness could not have been obtained if proper diligence had been used for that purpose. It does not appear that the witness had ever left Norfolk. It is not stated that any inquiry concerning him had been made there. If such inquiry had been made, and he could not be found, evidence of his hand-writing might have been permitted, But

as the case appears in the bill of exceptions, the court below has not erred.

Judgment affirmed with costs.

COOKE

V.

WOODROW.

MANDEVILLE AND JAMESSON v. WILSON.

are within the

ERROR to the circuit court of the district of Amendments Columbia, sitting at Alexandria, in an action of as- discretion of sumpsit brought by the defendant in error for goods the court besold and delivered, and for the hire of a slave.

low.

Quare, whether the court ought to peramendments after judgment upon demurrer.

The defendants below pleaded non assumpserunt, mit and the statute of limitations.

In the statute of limita

chants' ac

To the latter plea the plaintiff replied, "that the said money in the several promises and undertakings tions, the exaforesaid above mentioned in the declaration, at the ception in fatime of the making of the promises and underta- your of mer. kings aforesaid, became due and payable on an ac- counts, applies count current of trade and merchandise had between as well to acthe said plaintiff and the said defendants as merchants, sumpsit, as to and wholly concerned the trade of merchandise, to actions of acwit, at Alexandria aforesaid, in the county aforesaid, It extends to and this he is ready to verify."

tions of us

count.

all accounts current which concern the

An account

To which the defendants rejoined, "that in the trade of mermonth of January, 1799, the partnership of Mande-chandise. ville and Jamesson was dissolved, and public no- closed, by the tice given of such dissolution, of which the said cessation of dealings beplaintiff had a knowledge at the time, and that at tween the parthe time of the said dissolution of the partnership ties, is not an aforesaid, all accounts between the said plaintiff and the said Mandeville and Jamesson ceased, and cessary that since which time no accounts have existed, or been any of the continued, between the plaintiff and the said defend- have been ants, which the said defendants are ready to verify." in the five charged with

The plaintiff surrejoined, "that the goods, wares

account stated. It is not ne

items should

years, nor that the declaration