
    ALLEGHENY COUNTY,
    September Term, 1793.
    Jeremiah Barker, v. William Sutherland.
    THE declaration stated, That whereas, one “Jacob Whitsel requested the plaintiff to fell him a quantity of goods of the value of 75l, in consideration of which, Whitsel would deliver to the plaintiff a power of attorney from him and Lewis Whitsel, to receive their pay, as soldiers of the United States ; that plaintiff refused, and that thereupon defendant assumed, that 75l. was due to Jacob and Lewis Whitsel, and that he would be answerable ; in consideration of which, and, at the request of defendant, that plaintiff delivered to the said Jacob goods to the value of 75l.; that only 37l. 10s. of the said pay was due; and that action accrued to plaintiff to demand of the defendant 57l. 10s. which he, though requested, had refused to pay.
    The following receipt of Jacob Whitsel was proved, and read to the jury:-
    “Received July 28th, 1791, of Jeremiah Barker, “the sum of 75l. in full for my own and Lewis Whitsel’s
      discharges or arrearages of pay and cloathing, “due from the United States. Witness my hand,
    “ Jacob Whitsel.”
    
    There was also evidence of the purchase of the goods, and of Sutherland’s assurance, that so much was due, and that Jacob Whitsel would not fell what he had not authority to fell, And proof was given that 37l. 10s. was received, but that payment of any thing on account of Lewis Whitsel had been refused at the War office.
    
      Jacob Whitsel (admitted by consent) proved that he had called on the defendant only to judge of the value of the goods, that he heard no such assurance given, and that he requested none.
    Woods, for defendant.
    Here was no express engagement on the part of Sutherland, but merely his opinion and belief, that Whitsel was, as he really is, an honest man. If there were, or even if the action were against Whitsel, there is no evidence, that the account at the war office is finally closed, or that more money has not been received. Engagements of this kind must be special and in England, must be in writing.
    Brackenridge, for the plaintiff.
    The English statute of frauds extends not here. We have a statute of our own, and this case is not within it. We have given sufficient evidence, that we have not received at the war office, the amount which we paid to Whitsel, and which Sutherland was to have made good ; and we have been refused any more. This is enough for us. If more has been received, let the defendant shew it.
    
      See Pasley v. Freeman 3T Rep. 51 and cases there cited. 1 Salk. 210.
    
   President.

Were this a case within the statute of frauds in England, that statute is out of the question here. Evidence has been given that 100 dollars have been paid, and that payment of the rest has been refused, at the war office. This is a good ground of action for the deficiency.

The question, whether Sutherland be liable or not, depends on this, whether the words of Sutherland amounted to a warranty, or only a representation. They may bear either sense ; and you must judge how they were understood by the parties. If this be only a representation, and if it be fair and honest, as to his belief, and without concealment of truth, or interest ; he is not liable. If this be a warranty, he is liable, however honest, full, and disinterested it may be.

The jury found for the defendant.  