also dissented. He expressed his opinion in substance as follows. From the facts in this case it appears that the plaintiff had the controul of Magill's notes, in which the defendant had an interest to the amount of the note now in suit; and that the plaintiff, by his agents, gave up and cancelled those notes without any authority from the defendant. This as to the defendant’s paid is payment, and fulfils the condition. If the ordinary course of collection had failed, the defendant must have shared the loss ; but the plaintiff could not cancel or compromise Magill's debt, without making himself responsible to the defendant. His agents could have no greater powers. I am, therefore, of opinion that a new trial ought not to be granted.
Ingersoll, J. was of the same opinion with Judge Baldwin. Hosmer, J. gave no opinion, having been of counsel in the cause.New trial to he granted.