2 Rawle 24 | Pa. | 1829
The opinion of the court was delivered by
— The action was originally brought by the plaintiff in error against the defendant, before a justice of the peace, who had rendered a judgmient for the plaintiff, from which the defendant appealed to the Court of Common Pleas of Lycoming county. On the trial in that court, the plaintiff, in support of his action, gave in evidence two due bills from the defendant and one John Reed to him; one in the following words:-r~
“ Due to the order of John K. Hays, the sum of thirty dollars, on or before the first day of December next, provided the said Lusk cannot make it appear, that no person else committed the trespass, with interest from this date. Given under our hands and seals this 14th day of August, A. D. 1823.”
The other bill was in th.e same words," except that it was dated the 13th of August, 1823, for thirty dollars, payable on or before the 1st of April, 1824, with interest from its date. The pleas were nil debet, and payment, with leave to give the special matter in
In this, the plaintiff alleges, that the court erred, and has assigned it for error here. It is true, and the law was so far correctly laid down, that bonds, or bills under seal,, import a consideration; but,. in our opinion, the court-erred, in stating to the jury, that in this case the burden of proof of consideration was thrown upon the plaintiff. There is nothing in .this ease to take-it out of the géneral rule. The defendant was charged with a trespass, .in killing the plaintiff’s cattle, and a suit had been brought against him for it. On their way to. the justice, the plaintiff alleged,-he could prove his cause of action, which the defendant denied; it was, therefore, a controversy about a doubtful matter; a risk was to be encountered by each party, and must have been taken into consideration by both. At length a compromise was proposed by the defendant, into which the plaintiff signified'his readiness to enter; an agreement or compromise was actually entered into and made, and in consequence thereof, the bills single were sealed and delivered by the defendant,and a surety to the plaintiff. Clearly this contract was valid, if there was no concealment, or unfair dealing by the party in whose favour the compromise is supposed to operate; and, to this effect was the decision of this court in Perkins v. Gay, 3 Serg. & Rawle, 332. There was.no concealment, or unfair dealing that I can perceive on the part of the plaintiff. The compromise then, being of a doubtful suit, formed a sufficient consideration, for the single bills of Lusk and his surety to Hays. I admit, that if, on the trial of the cause, Lusk had shown, to the court and jury, that some other person had committed the trespass, it would have availed him, for it would have satisfied any court of justice, and jury,, that the pay-
Judgment reversed,, and a venire facias de novo awarded.