*471The opinion of the Court was delivered by
Mellen C. J.The report of the Judge presents three questions for the decision of the Court.
1. Was Mr. Williamson properly admitted as a witness ? He is not the indorser of the writ ; and in reply to his letter to the plaintiff, stating, in substance, the facts in relation to the present action, he received the letter referred to in the report. In this letter, the plaintiff wishes him to prosecute the action and engages to reimburse to him all expenses he might incur in the prosecution. Under these circumstances we do not perceive how he can be considered interested any more than every agent is, acting under the authority and orders of his principal.
2. Were the instructions of the Judge to the jury correct? The facts are the same as they appeared on the trial in the Court of Common .Pleas; and we have already given our opinion on them, that they did not amount to a payment and discharge of the bond ; in consequence a second trial has been had. In this state of the case, the presiding Judge of this Court, instructed the jury that the action was maintained upon the facts before us ; they not constituting a legal defence. It is contended, that this instruction was incorrect: that the questions, whether the payment was complete, and the business done and the bond delivered up, before the additional claim of Mr. Williamson was made, should have beeir left to the jury. It was not intimated at the argument that any other evidence existed on the part of the defence ; nor did Mr. Williamson testify to any one fact contradicting the language of the receipt on the back of the bond ; on the contrary, he testified that he wrote and signed it. His testimony was important merely as it respected certain additional facts. As to these there was no pretence that they could be controlled or varied or weakened by any opposing proof. But it is urged by the defendant’s counsel that they had a right to the opinion of the jury as to the value of Mr. Williamsoris testimony and his credibility as a witness. In reply to this argument, we remark, that the jury had an opportunity of weighing his testimony, they were not prohibited from so doing. A Judge, when giving instructions to a jury, is not obliged at every sentence to introduce the can*472tionary condition, “ if you believe the witness.” This is to be understood as always implied, when not expressed ; or else we must absurdly presume that they are to follow his instructions, whether they believe the evidence or not; and that such is his meaning in giving his instructions. Besides, a jury is to act and decide on evidence, not caprice : —• they are to draw conclusions from legitimate premises. In the present case they must be considered as having done so, in believing a witness who stood before them unimpeached ; and, for any thing appearing to the contrary, unsuspected. Had the defendant introduced or offered to introduce any impeaching evidence, it should unquestionably have been submitted to the special consideration and judgment of the jury. The facts of the case, therefore, being uncontested, it is a question of law, whether they amount to a payment and discharge of the bond, as much as it is a question of law, whether certain facts proved, amount to a tender. As to this principle no one can entertain a doubt. As a question of law, we have once given our opinion upon it, and we perceive no good reasons for changing it.
3. Was the verdict properly returned and affirmed ?
The first section of the statute of 1830, ch. 463, furnishes a ready and conclusive answer to this question. It provides, that in all actions on bond, if the verdict be for the plaintiff, the jury shall assess the damages by their verdict, and the Court shall enter judgment for the penal sum of the bond. In the present case the jury assessed damages against FisTce to the amount of the plaintiff’s execution against Riggs, the original debtor, with interest and charges of commitment, and damages against Riggs, equal to the amount of the penalty, according to the directions of the 10th sect, of the act of 1822, ch. 209. The informality of the verdict as returned, was properly corrected before it was affirmed, according to constant practice.