
    Richardson against Smith.
    XspécH agreement for the exchange of notes, with a warranty of the note ex-. changed, cannot dene^'in"'^)-
    THIS was an action of assumpsit. The declaration contained three counts. The two first counts were on a special agreement, for the exchange of notes between , . . n , ... the parties, and a warranty ot the note exchanged and delivered by the defendant to the plaintiff. The third count was for money had ,and received, to the use of the plaintiff, money paid, &c. To the two first counts there was a demurrer, and a judgment thereon for the defendant. To the third count, the defendant pleaded the general issue. The cause was tried at the Cayuga circuit, in June, 1811, before Mr, Justice Tates.
    
    At the trial, the plaintiff offered in evidence the special agreement, in support of the money count. The evidence was objected to, but admitted; and the jury, under the direction of the judge, found a verdict for the plaintiff.
    A motion was made to set aside the verdict, for the misdirection of the judge.
    Cady, for the defendant.
    
      Rodman and Richardson, contra.
   Per Curiam.

The verdict must be set aside, and a new trial awarded, with costs to abide the event. Such a special agreement could not be given in evidence, under the money counts. It would be going beyond all precedent, and produce the greatest surprise on the defendant. Even if the evidence had been admissible, it did not support the warranty alleged.

New trial granted»  