
    * William Greenwood versus Benjamin Curtis.
    A promissory note, not negotiable, given m consideration of a balance found due upon an insimul computassent, is not of itself a payment, nor a bar to a recovery in an action on the insimul computassent.
    
    This was assumpsit upon a contract in the following words, viz.: —
    “ Ric Pongos, on the coast of Africa, July 27, 1802. I promise to pay, or cause to be paid, to the owners or concerned of brig Hope, nine four foot slaves, thirty-seven prime slaves, and seventy-six bars, on demand, for value received of Capt. Hichborn.
    “ Benja. Curtis.”
    The first count alleges that, prior to the date of the foregoing instrument, the plaintiff had become the owner of the brig Hope and her cargo, by purchase of one Humphry Courtney, and of all the proceeds of said cargo ; that Isaac B. Hichborn was master of said brig; and that the defendant gave said note as above described.
    The' second count states the promise to have been made to the plaintiff, to pay the owners and concerned of said brig as aforesaid.
    The third count alleges the promise to the plaintiff to pay him according to the note, and concludes with allegations that, at the time of making the promises, and until the purchase of the writ, the plaintiff was owner and concerned in the said brig Hope and the cargo, and the proceeds thereof, and alleges notice to Curtis, and a request to deliver the slaves., &c., according to the promise.
    
      Before the trial, a new count was filed under general leave tc amend, which was objected to by the defendant, on the ground that it changed the nature of the demand ; but the objection was overruled. This count alleges a settlement of accounts between Curtis and Hichborn, the master of the brig, for the benefit of the plaintifl as owner, and a balance found in bars, equal to 4481 dollars I cent, due from Curtis to the plaintiff.
    The action was tried at the last November term, before Parker, J., from whose report of the case the following facts appear: —
    The interest of the plaintiff in the brig Hope and cargo was proved according to his allegations. The defence principally relied on was, that the contract declared on was in violation [ * 94 ] * of the principles of the constitution and laws of the state and of the United States, and therefore no action could be maintained on it in the courts of the commonwealth.
    
      Selfridge for the plaintiff.
    
      Channing for the defendant.
   The judge directed the jury to that effect; and further, that the plaintiff could not recover upon the insimul computassent, because the evidence showed that the note, described in other counts, was given in extinguishment of that balance, which note was not void, although payment of it could not be enforced by the laws of this commonwealth. A verdict was returned for the defendant.

The question reserved for the opinion of the Court was, whether the said direction of the judge was right. If they should be of opinion that it was right, then judgment to be entered for the defendant for costs ; if otherwise, the verdict to be set aside, and a new trial granted.

It appearing to the Court, according to the terms of the report, that no objection lay to the insimul computassent, and that the note given in consideration of it, not being negotiable, could not in law be considered as a payment of it, and therefore that a new trial ought to be granted, as the facts, which may hereafter be disclosed upon such trial, may perhaps entitle the plaintiff to a verdict on that count, a new trial was granted accordingly, neither party opposing it. Vide 1 Burr. 9, Rhodes vs. Barnes

N. B. The defendant’s counsel objected to the plaintiff’s recovery, on the insimul computassent, because the items which composed it could not be the foundation of a mutual account, on which assumpsit would lie. But the ground of his objection was not made part of the report.  