5 U.S. 181 (1803), Clark v. Robert Young & Co.

Citation:5 U.S. 181, 2 L.Ed. 74
Party Name:ROBERT E. CLARK, plaintiff in error v. ROBERT YOUNG and Company, defendants in error.
Case Date:February 17, 1803
Court:United States Supreme Court
 
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Page 181

5 U.S. 181 (1803)

2 L.Ed. 74

ROBERT E. CLARK, plaintiff in error

v.

ROBERT YOUNG and Company, defendants in error.

United States Supreme Court.

February 17, 1803

OPINION

Mr. Chief Justice MARSHALL delivered the opinion of the court.

Page 190

This was a suit brought by the defendants in error against the plaintiff, in the circuit court of the district of Columbia sitting in the county of Alexandria; and the declaration contains two counts for goods, wares and merchandises sold and delivered, and one for money had and received to their use. The cause came on to be tried on the general issue, and a verdict was found for the plaintiffs below, on which the court rendered judgment.

At the trial of the cause it appeared that the suit was brought for a quantity of salt, sold and delivered by Robert Young & Co. to Clark; after which Clark indorsed to Robert Young & Co. a promissory note made by Mark Edgar to John Pickersgill & Co. which had been indorsed by them to the said Clark, and which was payable sixty days after date.

This note was protested for non-payment; after which a suit was brought thereon by Robert Young & Co. in the county court of Fairfax against Clark: and the declaration contained two counts, one on the indorsement, and the other for money had and received to the use of the plaintiffs. In this suit verdict and judgment were given for the defendant, Clark; the court of Fairfax being of opinion that a suit could not be maintained against the indorser

Page 191

of the note, until a judgment had been first obtained against the drawer, and his insolvency made to appear.

After the determination of that action, this suit was instituted on the original contract; and, at the trial, the counsel for the defendant moved the court to instruct the jury, that if, from the evidence given in the cause, they should be of opinion that the promissory note aforesaid was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares and merchandises sold as aforesaid, although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandises, or received as such by the plaintiffs, but merely as a conditional payment thereof, yet the receipt of the said note under such circumstances, and the institution of the aforesaid suit by the said plaintiffs against the said defendant, on his indorsement...

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