Common Pleas Court. Before Judge James Atkinson. Case No. 305 New York, N. Y., Nov. 6. 1845

Samuel S. Stover, for plaintiff.

Charles Willard and Marcus Tooler, for defendant.

Testimony For Plaintiff. George Binder, the plaintiff, being duly sworn, testified as follows

Direct Examination

By Mr. Stover:

Q. What is your business, Mr. Binder?

A. Wholesale dealer in telegraphic outfits.

Q. Did Henry T. Nagle, the defendant, ever purchase goods of you.?

A. Yes, sir; for many years prior to January 29, 1843.

Q. Why did he stop buying of you at that date?

Objected to. Objection sustained.

Q. He stopped buying of you at that date, did he?

A. He did.

Q. Was his account square with you then?

A. It was not. He then owed me a balance of two hundred and ninety-eight dollars and fifty-seven cents.

Q. How was this balance settled?

A. By a note drawn for that amount, payable thirty days from date.

Q. Is this the note, Mr. Binder?

A. It is.

Q. Was it ever paid?

A. It was not, or the protest would not be written on the back of it, and I would not now be in possession of it.

Q. Was no amount whatever paid on account of that note after protest?

A. There was not.

Cross Examination

By Mr. Willard:

Q_. Mr. Binder, what does this amount, two hundred and ninety-eight dollars and fifty-seven cents, represent, and how far back does it date?

A. It dates back about two years, or a little over, and it represents what Mr. Nagle owes me.

Q. I understand that the last bill was bought a few weeks previous to the making of this note-is that so?

A. Possibly it was.

Q. And that the goods were delivered on the day that the note was made?

A. Yes, sir; I think they were.

Q. Has there been no payment made on account of this note?

A. I have no recollection of any.

Q. Do you not recollect of one day in January, of this year, receiving twenty-five dollars from Mr. Nagle on account of this note?

A. I do not.

Q. Nor twenty dollars?

A. No, sir.

Q. And you called for the money several times, did you not?

A. Yes, sir; I did.

Q. Did not Mr. Nagle, on a certain day in January, of this year, promise to pay twenty-five dollars on account of this note?

A. Maybe so. He used to make about six promises a week of a similar kind.

Q. Did he not meet you at Desbrosses Street Ferry, one day in that month, of that year, and pay you twenty-five dollars on account of this note?

A. I remember meeting him several times at that ferry, but I never received any money from him at any time on account of this note.

O You are positive that you do not remember receiving any money from Mr. Nagle on account of this note?

A. I know I never did.

Q I believe you said in your direct examination that the note was for thirty days?

A. Yes, sir.

Q. This is the note, I believe?

A It is.

Q. This note reads " one month from date "-which is correct?

A. The note, of course.

Q. Then you admit that, in this instance, your memory was at fault?

A. Well, as to the thirty days, yes.

Q. But not as to having received payment on account of this note from Mr. Nagle?

A. No; as to that, I am positive.

Q Of what?

A. Of never having received any money on that note.

Q. Now, Mr. Binder, do you not remember, upon another occasion, in January of this year, when you called upon Mr. Nagle, as he was about leaving his office upon an important business engagement, on which occasion he paid you money on account of this note?

A. I do not.

Q. What sort of telegraphic instruments was this last bill for-this bill for goods delivered on the day the note was made-what sort of instruments?

A. There were some relays and sounders, and some small articles which I do not now remember.

Q. How many of the articles included in that bill were returned to you by the defendant?

A. None of them.

Q. Did not Mr. Nagle come to you on that day, after the note was given you, and notify you that the goods you sent him were not as represented and that he intended to return them or some of them to you the next day?

A. No, sir.

Q. Did he not return them to you?

A. No, sir.

Q. Do you mean to say you never received back from Mr. Nagle any portion of the goods sent him by you on the day this note was signed?

A. I most emphatically mean to say I did not receive any of my goods back from Mr. Nagle, after the signing of that note.

Q. And never received any complaint about them?

A. No, sir; not that I remember.

Q. Ah, not that you remember. But it might have happened, you think?

A. No, sir; I do not think so.

Re-Direct Examination

By Mr. Stover:

Q. Mr. Binder, are you positive that you never received any payment on account of this note?

A. I am very positive that I did not.

Q. Do your books or any memoranda of yours contain any such entries, affecting this note?

A. No, sir.

Q. Would they, if such payment had been made?

A. They certainly would.

Re-Cross Examination

By Mr. Willard:

Q. Are you positive that Mr. Nagle never complained about your last sale to him?

A. I am very positive that he never did, and he never returned any of these goods to me.

Plaintiff Rests