Henry Miller, v. John Probst

Henry Miller, v. John Probst. THIS was an action of debt, for the duty on two stills had, owned, and employed by the defendant, on 30th June, 1795, for one year then past. There were separate certificates of the entry of two stills for the year 1794-5, dated 12th December, 1794 ; and annexed to one of the certificates was the following note, signed by John Probst:-“Due for the last year’s arrearages 45 dollars and 68 cents, on both stills taken together.” Young, for the defendant, urged, that John Probst had not the stills, in the preceding year; and that the plaintiff cannot recover unless proof be made, that he had the stills within that year. Where no consideration is stated or proved, the promise, except in mercantile transactions, is not binding. 1 Est. 94. 2 U.S.L. 96. [MAJORITY — President.] President. Although John Probst had not the stills, another might have had and worked them, in 1793-4 . and the duty was then a lien on the stills. To relieve his stills from this liability, Probst might have undertaken to pay the duty. This seems to be the result of a settlement of an account between the parties, when all circumstances may be supposed to have been understood, and a balance struck. The note is prima facie evidence of a demand on Probst. He may controvert it, by shewing fraud, want of consideration, &c. There was a verdict for the plaintiff.