¶1We are of opinion,'that the court below erred in the charge to the jury. The instruction to the jury was so framed, that they were precluded from finding for the plaintiff, unless there was evidence of an express promise by Bass, to pay one-half of the note in question, to Mitchell. Mitchell’s right to recover, did not depend upon an express promise by Bass to pay, but upon the terms of the transaction between Bass and Griswald. If Griswald was indebted to both Mitchell and Bass, and placed the note in question in the hands of Bass, for the joint benefit of himself and Mitchell, and Bass so received it, then Bass would be liable to Mitchell for one-half of the note, without any express promise.
¶2We think the charge of the court was erroneous, and calculated to mislead the jury; and that the motion for a new trial ought, for that reason, to have been sustained. The judgment of the court below is reversed, and the cause remanded.
¶3Reversed and remanded.