
    Poorman against Smith’s executors.
    Mistake, or ■want of accuracy, in ex-pi'essing the opinion of a Judge to the jury on the facts, is not error.
    Nor is an omission to charge the jury on a point of law, to which the attention of the Judge was not particularly called.
    But mis-divection of the jury in matter 'of law, is error.
    When the whole case is mixed up of law and fact, the Judge may 1'eave the whole to the jury, unless the counsel select for liis opinion some particular point.
    In Error.
    ERROR to the Common Pleas of Westmoreland county.
    The plaintiff, Poorman, set forth in his declaration a special agreement between himself and Jacob Smith, deceased, by which Smith undertook to be responsible to him for the amount of four single bills, given by one George Matthews to a certain William M'-Kelvey, which were assigned by M'Kelvey to Smith, and by Smith to the plaintiff, (on account of a wagon and horses sold by the plaintiff to Smith,') in case the said Matthews should fail to pay the same. The plaintiff gave in evidence a written agreement, by which h,e acknowledged, that he had received the said single bills, “ on condi- “ tion, that if the said George Matthews should be committed “ to gaol, and take the benefit of the insolvent act, then the “ said Smith should be liable for the amount of the said bills: Y büt if the said Mdft'heWs should not 'apply fab thé benefit of tbe -insolvent act, then there should be nb recourse to the '“-■said Smith, his ‘e'x'ecutcsrs, administrators, or assigns.’5 The plaintiff then gaVe 'other evidence by which it •'appeared, that Mk&sh&ws had 'given these bills to M'-'Kd’be’y, in 'consideration ’of a tfact of land purchased of him, which -Mud. Was afterward sold by the sheriff by virtue of an execution on a .judgment á'gain'st M'-'É.elvéy-,prior to his sale to Mdúhizvs, at the 'suit of John Wells-. -An actioh Was brought for the use of the plaintiff, Ob one of the Said bills, against Géorge Matíñ'ezos, in which a Verdict Wá's given in favour of -Matthews-. No'suits had been brought on the Other three bills-. Whilst ■the suit against Matthews was depending, George Armstrong, ■■attorney for the plaintiff, informed Jacob -Smith of it, and de2'sired hi'm to attend to it ■; which Smith declined, 'and sáid hé •should leave the matter to the plaintiff, who'se busihe'ss it Was to conduct the suit. It did not appear, that -Matthews had been turned Out of possession of the land purchased of APKelveyi and the defendant’s contended, that if the business had b'eeh properly 'managed, the lien of the judgments Which affected the land might have been removed without á ’sale-, and that there Was probably some secret Understanding between Matthews 'and-the person who purchased at the sheriff’s sale* The counsel for the plaintiff proposed 'no particular point For the Court’s Opinion, but contended in general-, that the evidence was sufficient to support the action, and thé Counsel For the defendant insisted, that it Was not 'sufficient*
    The President of the Court of Common Pleas, after recapitulating the facts of the case, charged the jury as follows s
    
      u It is Upon the whole a singular case-. It is undoubtedly » hard, that the plaintiff should lo’se his money: but it would '« be bo less Unjust, that the estate Of Jacob Smith should be '« accountable without a clear, legal, or equitable 'obligation* « As to a legal one there is pone -: and the equitable one is at u least doubtful-.
    **■ If it had been established, that Matthews had lost thé 4 ‘ land oti an ejectment brought by John Wells, the present case might have been viewed with some reason, as coming “ within the spirit of the contract between Poorman and Smith* u Why Matthews did not come forward at the time of the she- « riff’s sale and discharge the balance due on the judgment* ■** has not been accounted for. Why not become the purchases?' “ himself; or at least offer to the amount of the money that “ was then due ? As to the trial of the suit against Mat- “ thezvs it is unnecessary to say much. Whether any de- “ fence was ipade or not is entirely out of the recollection of “ any of the Judges of this Court. I don’t impute any col- “ lusion to the plaintiff. The point is, whether he is justly “ entitled to recover the amount of the four notes, 329 dol- “ lars, with lawful interest from the dates they severally be- “ came due. As to three of the notes which have not been “ put in suit, and which, upon a further and more close in- “ vestigation may yet be recovered, I don’t see how you can “ find for the plaintiff. The recovery of the first note is, to “ say the least of it, extremely doubtful. Upon the whole, “ we leave the determination of the case to yourselves on the “ evidence; but think your verdict ought to be for the de- “ fendant.”
    To this opinion the plaintiff excepted, and the Court sealed a bill of exceptions. The jury found a verdict for the defendant.
    Alexander, for the plaintiff in error.
    The Court ought to have left it to the jury, whether there was not fraud in drawing the agreement under which the single bills were received. Paper is not payment unless so received. Counterfeit notes given in payment by a person ignorant of that circumstance were held no payment. 2 Johns. 459. Fraudulent misrepresentations when a note is paid, makes it no payment. 6 Johns. 110. In an action on an implied warranty on the sale of a horse, it was proved, that the horse was recovered by a third person in a suit^of which the vendor had notice ; and it was held, that the vendor was bound to attend to that suit. 1 Johns. 517. He also cited, 6 Johns. 158. 9 Johns. 310.
    Foster, contra.
    The assignor of a single bill is not liable on his assignment. He can only be bound in a case of fraud or on a special contract. In this case the Court were not bound to say any thing about fraud ; because they were not requested by the counsel to give any opinion about it. I agree, that if the jury thought there was fraud in assigning the notes, they ought to have found for the plaintiff. Smith never had notice from Poorman of the suit against Matthews; 
      but it was mentioned in the presence of Smith, by George Armstrong, without authority. It appears that the suit was not conducted properly. Matthezvs ought to have purchased the land at sheriff’s sale, and deducted the amount from his bonds. There were but 50 dollars due on the judgment when the land was sold.
    
      Reply. We rely on fraud or mistake in the written contract : and that, therefore, it was void. The Court ought tp have put it on that ground without being asked.
   Tilghman C. J.

(After stating the case.) The counsel for the plaintiff proposed no particular point for the Court’s opinion, but contended in general, that the evidence was sufficient to support,the action: and the counsel for the defendant insisted, that it was not sufficient. Under these circumstances when a Judge comes to deliver his charge, he is necessarily but to express his opinion of the facts; nor is it-error of which the superior court can take notice, if there should have been any mistake or want of accuracy in remarking on the facts. The attention of the Judge below not being drawn by the counsel to any particular matter of law, on which an opinion is desired, may omit many pertinent observations : but yet there would not be error, unless it appeared to this Court, that the jury had been misdirected in matter of law. In the present instance the Judge expressed his opinion, that in strictness the evidence did not support the declaration : yet he left the jury at liberty to find for the plaintiff, if, under the equity of the case, they thought he deserved a verdict. This was surely as favourable a charge as the plaintiff had a right to ask. But he now complains, that the Judge did not expressly tell the jury, that they might find for the plaintiff if they should be of opinion, that there was fraud or mistake in drawing the agreement between the plaintiff and Jacob Smith. The Judge told the jury, that as to the three bills which had not been put in suit against Matthews, and which, upon a further and more close investigation might perhaps yet be recovered, he did not see how the verdict could be for the plaintiff: and in this, I think he was clearly right. As to the other bill which had been put in suit, and in which a verdict had been given for Matthews, he considered the matter as extremely doubtful, and left it to the determination of the jury on the evidence j at the sametime declaring his own inclination, in favour of the defendant, I can perceive no error in point of law in this, charge* The matter was so compounded of fact and law, that the Judge had a right to, leave the whole to the jury, unless the counsel had separated some particular point from the general: mass, and required the Court’s opinion on it., Upon, the whole I am ®f opinion, that the judgment should he affirmed,

Yeates J, was sick and absent.

Gibbon J.

By the express stipulation, of the- parties, the-defendant was. to be answerable for the solvency of Matthews. and for nothing else. This is an attempt to render him liable beyond the terms and meaning of his contract, and to cast on. him a risk which the plaintiff agreed to. take on himself. Unless there were a false representation,, or fraudulent con. cealment of some material fact, by the defendant, when these single biffs were paid away, the plaintiff is. concluded by his own contract* A mere misconception of the parties is not sufficient to dispense with the contract;. for here they must have contemplated, the existence ©f other risks than the solvency of Matthezvs, and these, if they -were considered as a ground of responsibility, ought to have been expressly provided for. There can be no implied engagement carrying, the liability of either party beyond the terms, of an express, contract, where one exists, f therefore do not well understand what is meant by the Judge who tried the cause, when, he speaks of a legal and equitabl.e obligation, and. intimates,, that the latter might, under circumstances, be a ground of a.ction distinct from the former, in an action of assumpsit, where the consideration may be gone into, (and on account of which, Chancery will not entertain a bill for relief as being unnecessary,) whatever is equity is also law, if the meaning was that a naked moral obligation is, under any circumstances, sufficient to maintain this form of action, it was an error, but one that must have operated, if at. all, in favour of the plaintiff, it could,, therefore, make no. difference as to the defendant, on what ground Matthews was exonerated from the payment of the single bills ; the defendant’s engagement extending only to, his solvency. But it is alleged,, the Judge- did net,, as, he ought to- have done, have to, the jury to. inquire whether the agreement had not been obtained by fraud. It is very certain if the plaintiff had been cheated,.' he might treat the express contract as a nullity, and sustain his action for the original, price of the property sold. Rut of this there was. not a particle of evidencenor does it appear the counsel put the cause to the Court on the ground of fraud at all. If on this head the evidence had been in anywise doubtful, it would have been proper for the Judge to, instruct the jury as to, the effect of fraud in case they were of opinion it existed:, but this he was not hotrod to; do, unless, the point had. been made, and. his. opinion on it required j. much less so where there could be no, suggestion of fact on which to ground the principle, which it is contended he ought to,have applied to the evidence.. The judgment must he affirmed.

Judgment affirmed.  