
    Burger v. Bales.—In error.
   ASSUMPSIT on a due bill for 210 dollars. The declaration contains also the common counts. Plea, the general issue.

The cause being submitted to the Court, the plaintiff produced the due bill declared upon, and also proved that on a settlement of accounts between tbe parties, including a tavern bill, and a horse worth 75 dollars, there was a balance of 10 dollars in favor of the plaintiff.

The defendant then proved that said due bill was given in consideration of three notes amounting to 250 dollars, with interest thereon amounting to 40 dollars; that two of said notes were for 50 dollars each, and were executed by one Black, who was represented by the plaintiff to be solvent, but who was insolvent; that, at the time of the settlement of their accounts, after the execution of the due bill, it was agreed by the parties that one horse, at 70 dollars, was settled in with the accounts, and there was a balance in favor of the plaintiff amounting to 10 ■ dollars; that the next day after this settlement, a proposition was made that the plaintiff should receive back from the defendant the three said notes, and receive a horse, at 75 dollars, in money, or 120 dollars in notes, and pay the defendant 40 dollars, and give up to the defendant the due bill for 210 dollars. The witness who testified to these matters did not know whether this proposition was agreed to or not, but said that the plaintiff received from the defendant said last named horse, either in part payment of the due bill of 210 dollars, or in accordance with said proposition, and that said notes were not given up by the parties. This being all the evidence, the Court gave judgment for the defendant.

It is not easy to understand from this evidence the exact' state of the transactions between the parties. The evidence given by the defendant of a settlement, appears to refer to the same settlement proved by the plaintiff, in which it was agreed that there was a balance due the plaintiff. We think, upon this state of the proof, the plaintiff was entitled to recover at least that balance, as it does not appear that the subsequent proposition was agreed to or carried into effect by the parties. The judgment is reversed. Cause remanded, &c.  