The opinion of the Court was drawn up by
Shepley J.The bill appears to have been drawn by the defendant in favor of Wheaton, who indorsed it, and to have been delivered to the plaintiff, who was then collector of the customs for the district of Waldoborough, the consideration being the amount of a bond for duties due from the defendant to the United States. It was taken either in payment of the bond, or as security for it; and it is not perceived, that the rights of the parties to this suit would be varied whether it w7as taken for one purpose or the other; for if the bond wras paid and extinguished, the bill W'ould remain to be paid, and the same would be the result if taken as security. If the bond had been paid by it, the defendant might have successfully resisted the suit upon it, and the fact, that he admitted the bond to have been cancelled by mistake is very satisfactory proof, that he did not consider it paid. There is then no objection to the maintenance of this suit, unless it arises out of what took place after a former suit had been commenced upon the same bill.
It appears from the testimony of Mr. Farley, that Cleland brought a suit upon it, and while it was pending, took a written agreement signed by the defendant, which is not produced, but which is stated in the bill of exceptions to be, “ that plaintiff agreed with defendant, that defendant should be defaulted on the bond and no farther proceedings be had on the draft.” And the action was no further prosecuted. This agreement, signed by the defendant, was excluded because it did not appear that Cleland was authorized by the plaintiff to make such an agreement, and it does not appear that Cleland’s testimony might not have been obtained to prove his authority, and that would have been the best evidence. But if the attorney commencing and prosecuting the suit should be regarded as having sufficient authority to make such an agreement, it could only be evidence in connexion with other testimony from *162which an inference might be drawn, that the parties intended to cancel and discharge the bill; and any such inference would be repelled by the testimony of Mr. Prince, that in November, 1836, the defendant called upon him “ to witness that said draft was justly due from him to Me Cobb, and that he would take no advan-. tage of the statute of limitations.”
It cannot be material to determine, whether the copy of the memorandum upon the docket was properly excluded or not for the testimony of Mr. Farley, admitted afterward, fully proved all that appeared upon the docket..
Exceptions overruled.