Assumpsit by Shaffer against Decker, administrator of Shookman, on an account of 50 dollars. The action was commenced before a justice of the peace, and was to recover a debt claimed to have been due from Shookman, in his lifetime. The cause went by appeal to the Circuit Court. Judgment was there given, on a trial by the Court in place of a jury, for the plaintiff. The evidence is upon the record, and is, in substance, as follows : ,

Samuel Hurd testified: Shafer sold a mare to Guppy and got his note. Shortly after, Shookman bought the" same mare of Guppy and promised him to pay his note; to Shaffer. He and Cuppy came to the shop, and Cuppy delivered the mare to Shookman, and they spoke of the note Shafer held on Cuppy, and Shookman then agreed to pay it. The promise was not in writing. Afterwards Shookman refused to -do anything about it. Guppy was insolvent.

James S. Cullins testified: He went to see Shookman in his lifetime. Shookman said he got the mare of Cuppy but would not pay him. He did not owe him. He intended to pay Shafer.

The note given by Cuppy to Shaffer for the mare was in evidence; and on the foregoing proof the Court rendered; judgment for Shaffer, for the amount of said note and interest.

The judgment cannot be upheld. The plaintiff below did not make out his case. He proved no indebtedness from Shookman to him. Shookman owed Cuppy, and Cuppy owed the plaintiff; and had there been proof that said plaintiff, Cuppy, and Shookman, met together and mutually agreed that said Cuppy was released from his *188note to the plaintiff, and that said Shookman was, in consideration thereof, the debtor to that amount of said plaintiff, the judgment below would be right. 1 Chit. Pl. 16.; Perhaps, the mutual agreement mentioned might have been consummated without a meeting of the three together ; but such an agreement it was necessary to prove in this case. Such an agreement cannot be inferred from the evidence.

The judgment is reversed with costs. Cause remanded, &c.