The motion was properly overruled by the Court. The plaintiff was unquestionably entitled to a verdict on his first counts, and from the statement of the case, as little doubt can exist as to the two last. The contracts, as set forth, were proved. Iiow then could the plaintiff be non-suited ? If it had been proved that the notes of the 19 th of May had been paid, or in any other manner their value had been made available to the plaintiff, the Court might have been called on to instruct the jury, that the defendants were entitled to a verdict on the 3d and 4th counts ; and it would have been his duty *425 so to charge. But such was not the fact. They were given by a surviving partner, for debts due by the firm, and were unpaid. The original contracts were not thereby extinguished. But the plaintiff was at liberty to sue upon them, and recover what was justly due him, upon tendering back the notes. 19í7i Yes. 291, ex parte llodgkinson. Nor does the removal of the four horses, as stated, have any other effect than diminishing the amount which the plaintiff was entitled to recover.

Pea Curiam. Judgment of the Court below affirmed.