
    Wakeman & Wakeman vs. Bailey.
    Where, in an action by partners, the defendant claimed to set off the amount of a draft which he had transferred.to V., then one of the partners, but since deceased; it appearing among other things, that after the transfer, V. enclosed the draft to his firm in a letter: Held, inasmuch as V. was in possession of the draft at the time of writing the letter, it might be given in evidence by the plaintiffs as a part of the res gesta, for the purpose of showing that he claimed the draft-as his own, and that this was properly followed by proof of the draft having been in fact applied to V.’s credit on the firm books.
    Motion to set aside report of referees. The action was assumpsit for goods sold and delivered, and the defendant claimed to set off the amount. of a certain draft transferred by him to one Yaill, since deceased, who was at the time a copartner of the plaintiffs. On the hearing it appeared that in 1834 the plaintiffs and Yaill were partners, doing business as merchants, under the firm name of Wakemans & Yaill; that in June of that year the draft in question was transferred by the defendant to Yaill, who sent it to his firm; that in September after, Yaill died, and that in October of the- same year the goods in question, which formed a part of the stock in trade of Wakemans & Yaill, were purchased by the defendant. The stress of the controversy was whether the draft should be allowed as a set-off against the plaintiffs’ demand, or be considered a charge against Yaill individually. Upon this question, evidence was given on both sides. In order to show that Yaill, after taking the draft, had sent it to his firm as his own, the referees allowed the plaintiffs to give in evidence Yaill’s letter enclosing the draft and directing the firm to give him credit for it; and the plaintiffs were also permitted to prove that the draft was in fact applied to the credit of Yaill on the books of the firm. The admissibility of the evidence was objected to by the defendant before the referees. The latter rejected the set-off, and reported in favor of the plaintiffs, which report the defendant now moved to set aside.
    
      O. Hastings, for the defendant.
    
      M. T. Reynolds, for the plaintiffs.
   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.  