¶1The opinion of the court was delivered by
¶2I entertained no doubt on the trial, and so instructed the jury, that the evidence in i-egard to the presentation of the order of one hundred dollars to Messrs. Thibault. and their refusal to deliver a watch of the description requested by the witness, coupled with the letter of the defendant of September 19, 1836, would authorize a verdict for the plaintiff, on one of the common money counts. Dutch v. Warren, cited by Lord Mansfield in Moses v. Macfarland, 2 Burr. 1010-11; Smith v. Smith, 2 Johns. Rep. 235 ; fully warrant this conclusion.
¶3But in respect to the other order, there was no evidence supplementary to the proof of its genuineness. It had never been presented, nor was there any evidence showing the consideration upon which it was given. It was plainly therefore not recoverable upon the special count, and according to Saxton v. Johnson, 10 Johns. Rep. 418, it did not sustain either of the money counts.
¶4The rule for a new trial must therefore be made absolute.
¶5Rule absolute.