
    SEWARD and MOWERSON against VANDERGRIFT.
    OK CERTIORARI.
    The state of the case will sufficiently appear by the opinion delivered.
   Pennington, J.

The action below was brought [672] by Vandergrift against Seward and Mowerson, on their acceptance of an order drawn by Matthias Winans, and John Winans. In the state of demand, there is some obscurity as to the liability of the defendants below; they are stated to be trustees. The plaintiff below, undertakes to set out the origin of his claim, or rather the canse of the orders being drawn; he has done that also very obscurely. If it was necessary for him to have set out the nature of the trust, and the original cause of drawing the order, I should not think that he had done it so clearly as to entitle himself to an action. But I do not perceive the necessity that he was under, of stating those matters at all. The acceptance was the groundwork of the action. If the defendants below had no funds, or were not liable to pay, they should not have accepted. It appears to me, that this unnecessary matter may be rejected as surplusage; and then it stands simply on an accepted order.

[*] It is also objected to the proceedings below, that the justice admitted illegal evidence. The state of demand sets out that the plaintiff delivered to the defendants, the accepted order, on their promise to pay the same; and that after they got the order in their possession, they refused to pay. Kbti.ce was given to them to produce the order at the trial; and on their not producing it, the justice admitted parol evidence of its contents. I cannot perceive any legal objection to this. We must presume that the material facts set out in the state of demand, were proved; and if they were, that the plaintiff was entitled to recover. I am of opinion, that judgment be affirmed.

The other judges concurring,

Judgment affirmed.

Cited in State v. Mayhew, 4 Halst. 70.  