This was an action of assumpsit, instituted by Williamson against Alonzo C. Sadler, and Matthew T. Logan. The declaration contained three counts.

The first count set out that Sadler and Logan, on the 15th October, 1838, in consideration that Williamson had sold and delivered to them a horse, at the rate or price of $¡125’, delivered to Williamson a writing obligatory or covenant, executed by one Thomas J. Pax-ton, wherein he promised to pay one Thomas W. Stobaugh, on or before the first day of September, 1838, one hundred and twenty-five dollars in cash notes, by his (Paxton’s) assignment, for value received; which writing obligatory Sadler and Logan, on the 15th October, 1838, endorsed and delivered to Williamson, and then and there undertook and promised Williamson, that if Paxton did not pay him the sum of one hundred and twenty-five dollars in cash notes, they (Sadler and Logan) would pay him the said sum of one hundred and twenty-five dollars. The count then goes on to aver that Williamson, on the 16th February, 1839, presented the writing obligatory to Paxton, and requested him to pay the amount of it in cash notes; which Paxton neglected and refused to do, and further avers that he, Wil-iamson, had used due diligence to collect the said debt of one hundred and twenty-five dollars in cash notes off of Paxton; and then limmediately follows the breach that Sadler and Logan, although often requested, have not paid to him, Williamson, the said sum of one hundred and twenty-five dollars.

The second count is an indebitatus assumpsit for $125, the price of a horse sold and delivered to Sadler and Logan, by the plaintiff below; and the third count is a quantum meruit for the same cause of action.

To this declaration, there was a plea of the general issue and join-der; and, upon the death of Sadler, pending the suit, it was revived, and progressed in the name of Logan, surviving partner, &c. ■

On the 17th April, 1840, there was a trial, and verdict and judgment for the plaintiff, Williamson, for $137 82 damages. The bill of exceptions, taken at the trial, sets out fully all the evidence in the cause, and the several instructions moved for by the defendant and Logan, all of which were overruled by the court, as well as the instructions given by the court.

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