The plaintiff claims, that there are two errors in the proceedings of the county court: one in relation to the motion to set aside the verdict, and the other in the charge to the jury.
1. The motion states, in substance, that one of the jurors was not duly summoned, according to the requirements of the *339statute, setting out at length the return of the constable upon the jury-warrant. The court finds, that the juror was not otherwise drawn or summoned, than as stated in that return, and adjudges the return sufficient.
The complaint now is, that the issue is not properly found, and the judgment upon the finding is erroneous. The same formality of pleading is not required in motions of this kind, as in the pleadings in relation to the subject matter of the suit. Although the motion is not drawn with technical precision, yet the object is apparent. It was to test the validity of the return upon the jury-warrant; and for that purpose it is recited at length. The court, so understanding it, finds it to be true, and adjudges it to be sufficient.
The objection now urged, that it commences with a whereas, and grammatically imports that the warrant was read in the hearing of the town-clerk, and not in that of the juror, might be worthy of some consideration, were it urged against the sufficiency of a plea in abatement, but cannot prevail in a case of this kind. The return is, indeed, made in language not grammatically correct; yet no person looking at it with the eyes of common sense, can mistake its true meaning. The fair import is, that the officer proceeded to the town-clerk’s office, drew from the jury-box, in presence of the clerk, the name of the juror, and then read the warrant in his hearing-This is all that the law requires. At any rate, no other omission of duty on the part of the officer, is shown.
2. The bill of exceptions presents a difficulty of a graver character. The declaration contains only the common counts in the action of assumpsit. The plaintiff below claimed, on the trial, that he had a note against the defendant for the sum of fifty dollars, and that the defendant, in part payment of that note, assigned and transferred to the plaintiff, without indorsement, another note against Woodward <f- Avery for the sum of forty-five dollars. At some time, whether before or after the assignment to the plaintiff did not appear, the defendant, without receiving any payment from Woodward fy Avery, gave them a discharge of all demands, and thereby discharged the note.
The court instructed the jury, in relation to these matters, that if they should find, that the defendant gave the discharge, with design to discharge the note, and did thereby discharge *340w^e^ier it was done before or after the assignment to the plaintiff, the plaintiff was entitled to recover the amount of the note, with interest and costs. From this charge the jury must have understood, that if the defendant gave the discharge upon the note, after he had assigned it to the plaintiff, he was liable in the form in which he was sued. We do not see how this part of the charge can be vindicated.
If the note was a good and valid note, at the time it was transferred to the plaintiff, then it operated as payment of so much of the defendant’s debt to the plaintiff. No subsequent destruction of that note could operate to revive the original indebtedness of the defendant to the plaintiff. The defendant, by giving the discharge, committed a fraud upon the plaintiff, for which he might be liable in a proper form of action.
Had the defendant, at the time he gave the discharge to Woodward, <§• Avery, received from them the amount of the note in money, the case would be different. The plaintiff under such circumstances, might treat the defendant as his agent, and hold him accountable for the amount received, as for so much money received for the plaintiff’s use. But the bill of exceptions shows, that the defendant received nothing from Woodward Sf Avery for the discharge, and of course had received nothing for which he was accountable to the plaintiff.
It is further said, that the defendant, by his discharge, has acknowledged the receipt of the forty-five dollars, and is estop-ped from denying it. But there are no sufficient facts stated upon the bill of exceptions to warrant any such conclusion. Resides, neither the parties nor the court, on the trial, placed the case upon that, ground.
Upon this last point, therefore, in relation to the charge of the court to the jury, we are of opinion, that the judgment of the county court must be reversed ; — and we so advise the superior court.
In this opinion the other Judges concurred, except Church, J., who was not present.Judgment reversed.