VUYTON v. BRENELL, 28 F. Cas. 1311

BY THE COURT. The stated account relates only to the unsettled mercantile transactions between the parties, and as to that, evidence to explain or contradict it would be improper. But the defendant offers, by way of set-off, an independent claim for a debt assigned to him, which was not included in the stated account, but which, the intestate promised to pay, claiming only to deduct from it, the balance found due by the settled account. Evidence to establish this fact, does not violate the rule above laid down, and is clearly proper.

The defendant then offered to prove, that after the massacre at the Cape and at Jeremie, in 1793, the intestate' and the defendant fled, and arrived at Baltimore, where another settlement took place, and the intestate gave his note to the defendant, to pay the 100,000 livres, with interest, after deducting 48,000 livres, then found due to the plaintiff. That this note was, in 1795, sent by the defendant, with a power of attorney, to a Mr. Berthier of Jere-mie, to recover. This evidence was objected to, unless the defendant should first prove the loss, or destruction of the note.

This promise, if made, was at Baltimore, and is therefore barred by the act of limitations, and if so, the plaintiff may avail himself of it at the trial. The defendant, to prove the loss of the note given at Baltimore, produced witnesses who stated, that most of the town of Jeremie and the Cape were burnt. The deposition of Berthier stated, that he had received sundry documents from the defendant to recover debts, and amongst others, the promise of the intestate to pay 100.000 livres; that when he left St.

Domingo, he delivered over these papers to Legros, an attorney, to pursue the claim, and that Legros had been assassinated. BY THE COURT. This evidence does not sufficiently establish the loss of the paper. The defendant might have procured better evidence of it. He might, by a commission, have proved what became of Legros’ papers; whether they were burnt, or destroyed. Evidence has been given, that when the negroes assassinated an individual, they generally destroyed his papers, and further, that it was not safe, for any white person, to apply for papers belonging to any of the emigrant planters.

But, certainly, the fate of Legres or his successor, and of the papers, might haye been proved by a commission. Was his or their house burnt? Evidence of this might suffice, with the other facts in the cause. Upon signifying this opinion, the defendant produced witnesses, who proved, that the papers of Legros, after his death, passed into the hands of Mr. Dallet, an attorney, who was massacred at the Cape, and that his papers were destroyed. BY THE COURT. This is sufficient. The defendant may now prove the contents of the note. Upon the evidence given of the note, the plaintiffs suffered nonsuits in both cases.