Page:United States Reports, Volume 1.djvu/469

458 

1789.

After argument, by Swiƒt, for the Plaintiff, and Tilghman, for the Defendant, the rule to ſtay proceedings was made abſolute ; and the rule for payment of double coſts, was diſcharge. 

HESE actions were removed by writs of Error from the Common Pleas of Lancaʃter County ; and, on return of the reſpective records, the proceedings appeared to have been as follow:

I. On the firʃt,  or larger, record, it appeared, that a Capias in an action of Debt in the Detinet, iſſued at the ſuit of John Muʃʃer againſt John Thompʃon, for 200,000 weight of tobacco ; and the declaration ſet forth a penal bill, dared in the penalty oƒ 200,000 weight of tobacco, of the ſame inſpection to John Muʃʃer,  of his aſſigns, as ſoon as it could be collected of thoſe who are indebted to the ſaid John Muʃʃer, and the Obligor ; but the ſaid John Thompʃon agrees, that, in caſe it cannot be collected, or obtained, he will be anſwerable for the fame.” ––After Oyer of the bill, the defendant pleaded payment, the Plaintiff replied nonʃobvit,  and thereupon iſſue was joined.

The cauſe was tried at Lancaʃter, on the 7th of December, 1786, when the Plaintiff below gave in evidence the penal bill ſtated in the declaration, upon which an indorſement was made and ſubſcribed on the 25th of May, 1785, that “ it was agreed by the parties, that the within tobacco ſhould be ſettled at the current price at Frederickʃburgh, on the 1ft of May 1784 ; at which time the within bond is conſidered due, and is to carry intereſt from the date.” There was, likewiſe, a receipt on the back of the bill, ſigned by Muʃʃer's attorney in fact, on the 5th of July, 1785, acknowledging that he “ received the within bill in full.”

On behalf of the Defendant below, two indentures were given in evidence, from which, it appeared, that the Plaintiff and Defendant had entered into a copartnerſhip, for carrying on an inland trade during a limited period ; and on the denture laſt made between them, a memorandum was endoſed, dared the 3d of January, 1784, ſetting forth the receipt of the two penal bills, on which the preſent actions were brought, and declaring that the fame,  when paid, were to go in diſcharge of what was due from Thompʃon  to Muʃʃer. Several letters were read from the latter to the former, in which it was confeffed,  “ that Muʃʃer had no other claim, but upon thefe bonds, againſt Thompʃon, and that every  ment