(Lee v. Conard.) was not in terms nor yet in substance the same: Because, by his declaration, he seems to admit the correctness and justness of the judgment originally, but alleges that it had been paid, and therefore it was wrong and unjust in the defendant to sue out the execution upon it, and to cause his, the plaintiff's land, to be sacrificed or sold for $1500 less than its value. The plaintiff having thus admitted that the judgment was properly entered, it is clear that the defendant had no occasion to come prepared at the trial, to maintain it to be so. It was sufficient, in order to meet the allegation of the plaintiff, that the defendant came prepared to show, that the judgment had not been paid or satisfied at any time after it was entered, and previously to suing out the execution and making sale of the land under it. But the evidence of Pryor, instead of going to support the allegation that the judgment had been paid, went to prove that the debt for which it was entered, had been paid prior to the entry thereof; and that the authority originally given for entering the judgment, had thereby been revoked, and that the judgment was therefore to be considered a nullity. To say the least of it, this was presenting the case in an aspect quite different from that given to it in the declaration. That it is materially different, too, was decided by this court at the last term at Pittsburgh, in Braddy v. Brownfield, which will be reported in 4 Watts; where, in an action founded upon our act of Assembly, against a plaintiff in a judgment entered in his favour on a judgment bond, for not entering satisfaction in the prothonotary's office, where the judgment existed, after being paid the amount thereof; it was ruled that evidence going to show that the debt or bond had been paid and satisfied before the entry of the judgment, was properly rejected by the court below, on the trial of the cause. It being thus settled, that the payment or satisfaction of a debt mentioned in a judgment bond, before the entry of a judgment upon it, does not mean the same thing with the payment or satisfaction of the judgment after it is entered; the defendant in the present case, had no reason to expect that such evidence as that of Pryor's would be offered, or if offered, that it would be received, and, therefore, was not bound to come prepared to encounter it. If the plaintiff's case really be, that the debt was paid prior to the entry of the judgment upon, which the execution was sued out and the land sold, then, instead of insisting upon having his evidence admitted, he ought first to have had his declaration amended by leave of the court. This, I presume, the court would have permitted him to do, so as to meet the evidence; but, then, the defendant, if not prepared to answer to the declaration in its amended form, would have been entitled to the costs of the term, and a postponement of the trial until the succeeding term. It may be also, that the declaration, is defective in not stating that the proceeding of the defendant, complained of by the plaintiff, was done maliciously, and with an intent to injure and oppress, &c. Goslin (Bank of Wilmington v. Almond.) v. Wilcock, 2 Wils. 305, instead of stating it as it is, to have been done wrongfully and unjustly, with intent, &c. As this, however, has not been assigned for error, it is unnecessary to express an opinion upon it. The judgment is reversed, and a venire de novo awarded. [PHILADELPHIA, January 26, 1836.] THE BANK OF WILMINGTON, &c. against ALMOND and Others. IN ERROR. A., B., C. and D., copartners under the firm of A. & Co., gave their promissory note to the plaintiffs. Afterwards the partnership was dissolved by the retirement of A., the business being continued by the others, under the firm of B. & Co.; and a bond of indemnity was given by them to A. against the debts of the old firm. The firm of B. & Co. failed, and executed an assignment of their effects in trust for the payment of their creditors; and a release of all demands was executed by the creditors, among whom were the plaintiffs, who received a dividend from the assignees, on the note of A. & Co. Held, that by these acts of the plaintiffs, A. was discharged from his liability to them. THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of assumpsit, brought by the Bank of Wilmington and Brandywine against William Almond, William Warner, John Torbert, and Lewis Summerl, lately trading under the firm of William Almond & Co. The action was founded on a promissory note drawn by the defendants, Almond, Warner, Torbert, and Summerl, as co-partners under the firm of William Almond & Co., in favour of the plaintiffs, for $1180, dated July 1st, 1822, payable two years after date. The suit was commenced by capias to December term, 1824, to which a return of "C. C. & B. B. as to William Almond & N. E. I. as to the other defendants," was made. An alias capias issued to March term, 1825, and return made, "C. C. & B. B. as to Lewis Summerl & N. E. I. as to the other defendants." The defendants, Almond and Summerl, who had been brought in, signed an agreement for judgment in favour of the plaintiffs, "for the sum of $1248 78, on the 17th of June, 1825, as on an award of arbitrators of that date;" which agreement was filed and judgment entered on the 14th of March, 1826. On the 28th of March, 1826, the defendant, Almond, by his counsel, upon affidavit filed, obtained "a rule to show cause why the judg VOL. I. 22 (Bank of Wilmington v. Almond.) ment should not be opened, and the defendants let into a defence;" which rule was made absolute, and the judgment opened on the 5th of December, 1826. Upon the trial of the cause, the plaintiff gave in evidence the promissory note in question, and there rested his case. The defendant, Almond, by his counsel, in defence gave the following matters in evidence, viz.: A notice of the dissolution of the firm of William Almond & Co., published in the American Watchman, and Delaware Advertiser of Wilmington, (Del.) of April 1st, 1823, as follows: "Dissolution of Partnerships. The partnership of William Almond & Co. is this day dissolved by mutual consent. All persons having accounts with them, will call on Lewis Summerl & Co., at the factory, for settlement. WILLIAM WARNER, JOHN TORBERT, "The business of the Nemours Cotton Mill, on the Brandywine, will be continued by the subscribers, under the firm of Lewis Summerl & Co. WILLIAM WArner, Nemours Cotton Mills, March 28, 1823." JOHN TORBERT, The defendant then gave in evidence a bond of indemnity in the penal sum of $10,000, dated the 22d day of March, 1823, from Warner, Torbert, and Summerl, to Almond, reciting, that "Whereas the said William Almond, William Warner, John Torbert and Lewis Summerl, heretofore formed a partnership under the style of William Almond & Co., and carried on the business of cotton spinning, in a cotton mill formerly known by the name of Hagley's Cotton Factory, and since called Nemour's Cotton Mill, which Eleuthere Irene du Pont, Samuel M'Call, and Robert M'Call, by their deed, bearing date the twenty-eighth day of May, in the year of our Lord one thousand eight hundred and twenty-two, leased and demised to the said William Warner, John Torbert, and William Almond, for a certain term now unexpired; and whereas the said William Almond has withdrawn from the said concern, and the said partnership has been this day dissolved, by mutual consent, and the said William Almond hath, by a certain instrument under his hand and seal, bearing even date herewith, granted, assigned, and bargained and sold, all his interest, title, property and claim in the said lease, and in and to all of the goods, effects and (Bank of Wilmington v. Almond.) credits of the said partnership, and in and to all contracts made with the same, subject to the debts, covenants, contracts and engagements thereof, and subject, also, to the covenants and contracts in the said lease contained, to the said William Warner, John Torbert, and Lewis Summerl: and whereas, the said William Warner, John Torbert, and Lewis Summerl, have agreed to pay, and the said William Almond to receive, such sum of money as may be due to the said William Almond on the book of the said partnership, in manner following; that is to say, provided the said balance shall not exceed one thousand five hundred dollars, the same shall be paid in four equal instalments, at the expiration of three, six, nine and twelve months, respectively, with lawful interest thereon, from the date hereof, but if the said sum shall exceed one thousand five hundred dollars, then one thousand five hundred dollars thereof shall be paid in four equal instalments as aforesaid, and the residue thereof shall be satisfied by their promissory note, payable at sixty days after the date hereof: and whereas, the said William Almond hath agreed to continue in the service of the said William Warner, John Torbert, and Lewis Summerl, as manager and overseer of the said Nemour's Cotton Mill, until the first day of July next, if they shall require him so long to act in the said capacity, and hath agreed to relinquish the salary, which the said partnership has heretofore stipulated to pay to him, and hath consented to receive of the said William Warner, John Torbert, and Lewis Summerl, for his services as such manager and overseer, past and future, a salary at the rate of eight hundred dollars per annum, the said salary to commence at the expiration of six months after the commencement or formation of the aforesaid partnership of William Almond & Co., and to end whenever he shall be discharged by the said William Warner, John Torbert, and Lewis Summerl, the said William Almond thereby freely giving his services during the first six months after the commencement of the said partnership. Now the condition of this obligation is such, that if the said William Warner, John Torbert, and Lewis Summerl, do and shall well and truly pay all debts whatsoever, due from the said partnership of William Almond & Co., and do and shall within one month after the date hereof, procure the said William Almond to be released from the aforesaid lease and demise, and from the rents and covenants therein reserved and contained, and do and shall, will and truly, keep, perform and fulfil, all and every the contracts, covenants and engagements made at any time heretofore, by, or on behalf of the said partnership, and shall save and keep harmless, the said William Almond from all such debts, rents, covenants, contracts and engagements, and from costs, charges and expenses, arising or accruing by reason of the same. And if the said William Warner, John Torbert, and Lewis Summerl, do and shall, well and truly, pay such sum of money as may be due upon the books (Bank of Wilmington v. Almond.) of the said partnership to the said William Almond, to him in manner and form as herein before recited to have been agreed on; and if the said William Warner, John Torbert, and Lewis Summerl do and shall, well and truly pay to the said William Almond, for his past and future services as manager and overseer of the said Nemour's Cotton Mill, the aforesaid salary, at the rate of eight hundred dollars per annum, to commence from the expiration of six months after the formation of the said partnership, and to end at the time when he shall be discharged from their service as aforesaid then the obligation shall be void and of none effect, or else shall be and remain in full force and virtue, in law." The defendant then gave in evidence an indenture, executed the 29th day of October, 1825, between William Warner, John Torbert, and Lewis Summerl, composing the firm of Lewis Summerl & Co. of the first part, William Seal and Joseph Grubb of the second part, and "all other, the creditors of the said Lewis Summerl & Co., who shall have signed and sealed these presents, or who shall execute a release according to the terms thereinafter mentioned," of the third part, assigning "unto the said William Seal and Joseph Grubb, all and singular the said machinery, stock and effects of said company, debts, sum and sums of money due or belonging to said firm,” "in trust," (after deducting for rent, &c.) "to pay, apply, and appropriate all the said money arising from the said assigned premises, to and among all such of the creditors of the said William Warner, John Torbert, and Lewis Summerl, trading under the firm of Lewis Summerl & Co., in equal proportions, &c., as shall, within sixty days after the date of these premises, fully and absolutely release the said Lewis Summerl & Co. from their respective debts." The defendant then gave in evidence an instrument, dated November 18th, 1825, and executed by the "creditors of William Warner, John Torbert, and Lewis Summerl, cotton manufacturers on the Brandywine, under the name and firm of Lewis Summerl & Co.," which, after reciting the indebtedness of Lewis Summerl & Co., and their assignment" for the benefit of such of their creditors as shall sign and execute a release of their respective debts, at or before the expiration of sixty days from its date," of "all their copartnership, estate, real and personal, and outstanding debts of every description,"" released and forever discharged the said William Warner, John Torbert, and Lewis Summerl, composing the firm of Lewis Summerl & Co. &c., on the Brandywine, in the state of Delaware, their heirs, executors, and administrators respectively, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, duties, sum and sums of money, accounts, reckonings, bills, specialities, covenants, agreements, contracts, promises, executions, claims and demands whatsoever or wheresoever, in law or equity, which we, or either of us, |