¶1delivered the opinion of the court.
¶2From the statement of the facts, above set forth, and which is corroborated by what appears on the record, in, this case,„as the evidence given on the trial, I am satisfied that the court below erred, in the instructions which it gave to tbe jury.
¶3The contract was entirely executed on the part of the plaintiff, he had delivered the bond or note, and (it is immaterial which it was) to the defendant, it was accepted by her, it was used by her in the payment of her debt, and nothing remained to be done between the parties but the payment of the money hy defendant to,the plaintiff, in accordance with her promise and undertaking.
¶4The common counts were sufficient under this state of facts : and the plaintiff ought to have been permitted to recover tbe balance due to him from the defendant, on these counts.
¶5Because the court refused to set aside the non-suit, therefore, which the defendant had been compelled to take by the improper instructions of the court, its judgment is reversed—and the- cause remanded for further proceedings in accordance with this opinion.,