The opinion of the court was delivered by

—This was an action of debt founded upon a sin ■ gle bill in the following words : “Know all men by these presents that I, Charles Campbell, of Indiana county, for certain considerations, am held and firmly bound to deliver unto George Knox, of Armstrong county, thirteen hundred and fifty dollars of the price of a tract of land, sold by the parties to Messrs. Whiting Co. of Pittsburg, agreeably to an article of agreement between, *10said parties, and I do engage that said Knox is to have the above sum clear of all incumbrances. Given under my hand and seal this 27th day of June, 181S.”

CHARLES CAMPBELL. [A. s.] Immediately under the bond, on the same paper, was written the following agreement: “ It is expressly agreed by the above parties, that at the payments from Whiting <§' Co. of Pittsburg, of the purchase money of a tract of land, that neither shall have power to receive any part of said money, without giving the other party sufficient notice to attend and receive their own share, and the same principle to govern if the land should be sold to any other' person. Given under our hands and seals,

CHARLES CAMPBELL, |A. .B.j GEORGE KNOX. [l. s.]

The tract of land referred to in the above single bill and agreement, was one of four tracts sold by Charles Campbell the obligor, to Whiting <§' Co. by articles of agreement. This tract was one to which Knox, the plaintiff, had a claim, by virtue of a settlement made on it by him; but Campbell had a warrant for it in the name of McLean, under which' hé likewise claimed. It was however agreed between them, that Campbell should sell it, with the three tracts to which he had titles, to Whiting 8¡- Co. and become accountable to Knox for thirteen hundred and fifty dollars for his claim under his settlement, to be paid in three equal annual instalments, in like manner as Campbell should receive the purchase money of the whole four tracts from Whiling fy Co. which was to be paid in three equal annual instalments. Upon this arrangement the bond in suit and the agreement there underwritten, were given and entered into. Whiting fy Co. afterwards failed, and became unable to pay; upon which- Henry Baldwin, Esq. succeeded them in the purchase of the four tracts of land. It was given in evidence on the part of the defendants that Knox, the plaintiff, had directed Mr. Baldivin, who was to pay the purchase money for the four tracts of land, not to pay the thirteen hundred and fifty dollars, that was coming to -him, from Charles Campbell, but to keep it in his own hands, and to pay or account to him (Knox) for it. It did not appear that Whiting fy Co.. had paid any part of the purchase money to Campbell. It way also testified on the part of the defendants below, that Knox had said that his money (speaking of - the thirteen hundred and fifty dollars,) was now safe ; that he had got Mr. Baldwin for it:— that he did not want it; that he would leave it in his hand until he wanted it; that Mr. Baldwin had offered him a tract, of land, for it, but there was too much meadow ground on it. That he would get Mr. Baldivin to buy him a particular tract of land for it; and that he had dis charged Mr. Baldwin from paying the money *11to Charles Campbell,: that this was repeated at two or three different times to one witness, and in substance at different times to nevera! witnesses, who were qualified and gave testimony on the part of the defendant, below. Mr. Baldwin also testified, that Knox told him not to pay the thirteen hundred and fifty dollars to Campbell, but to retain it and pay i i over to him ; thaL he mentioned this to Campbell when he came to receive and settle for the purchase money with him : that Campbell assented to it, and •agreed that Mr. Baldwin should take a credit on the article of •agreement for the thirteen hundred and fifty dollars which he agreed to pay to Knox. Campbell, as appeared from the testimony, received all or nearly all the residue of the purchase money for ■the four tracts of land of Mr. Baldwin, after deducting the thirteen hundred and fifty dollars, which Knox had forbidden him to pay to Campbell.

After the testimony was closed, the counsel for the defendants, below, requested the court to charge the jury, that if they believed that the plaintiff gave notice to the Messrs. Whiting Sy Co. and to Mr. Baldwin not to pay the money to Charles Campbell, that he cannot recover in this action, without shewing, that the money has been actually paid to said Campbell. And again, to charge the jury, that if they believed that notice was given by the plaintiff, either in person or by his agent, to the Messrs. Whiting 4' Co. and-to Mr. Baldwin, or either of them, not to pay the money now claimed to the said Charles Campbell, that the said Charles had a right to receive his share of the money without giving notice to the plaintiff of the time and place of receiving it.

The first, second, and third errors assigned, were abandoned on the argument. The remaining four errors will be connected together, as they must all be referred to the same part of the charge of the court below, which is in the following words : “ There can be no doubt from the whole testimony, that Baldwin assumed to pay that sum, thirteen hundred and fifty dollars, to the plaintiff. But there is none from which it can be reasonably inferred, that he at any time, or on any occasion, took Mr. Baldwin for the money and discharged Mr. Campbell, the only person who was under any legal obligation to pay it, on a compliance by Whiting Sy Co. with their contract, or by those who came into their place and stead. According to the deeds of Campbell to Baldioin, who succeeded to the rights of Whiting Sy Co. sooner or later, whenever that contract was carried into complete effect, Campbell thereupon became liable to pay the plaintiff the sum stipulated, whether Campbell had received the whole or a part or only what was his own share. The old man, the plaintiff, talked rashly and even indecorously on some occasions, if you believe one of the witnesses ; but even to him, so far as I recollect his testimony, there-*12was no direct discharge of Campbell from his contract, although he may have then' supposed Mr. Baldwin a surer mark for his money.” Again the president judge who delivered the charge of the court to the jury, therein, says, “As to the hypothetical questions, put on both sides, I deem it unnecessary to take up any time in resolving them.”

It appears to me that the court below were in error in telling the jury that there was none of the testimony from which they could reasonably infer that Knox had at any time on any occasion taken Mr. Baldwin for the money and discharged Mr. Campbell. It is obvious from the terms of the obligation and the agreements, that Campbell was not bound to pay, nor was he liable to pay the thirteen hundred and fifty dollars to Knox until he should receive it himself upon the contract which he had made or might make for the sale of the land, or at least neglected to receive it when he had it in his power to obtain it. If this is a correct exposition of the obligation and contracts between the parties, of which there can bo no doubt, it necessarily follows, that any interposition of Knox, by which he prevented Campbell from receiving the money, and obtained an agreement to have it paid directly to'himself, when he should want or call for it, was a discharge of Campbell from his obligation, not only in equity and good conscience, but in law. The court was also in error when they told the jury, that from no part of thé testimony could it be reasonably inferred that Knox took Mr. Baldwin for his money. What other inference can be drawn from his repeated declarations, if the witnesses are to be believed, that he had got Mr. Baldwin for his money : that he had now got a gentleman for his money ; was sure of it, and would leave it in his hands till he wanted it. The president judge, again referring to the testimony of the witnesses, says, “but even to him, so far as I recollect his testimony, there was no direct discharge of Campbell from his contract, although he may have then supposed Mr. Baldwin a surer mark for his money.” I do not know, perhaps, what the judge here intended by a direct discharge, but if his idea was no other than a formal release or discharge given or delivered directly to Campbell himself, he was mistaken; for an acquittance given by Knox to Mr. Campbell would have indirectly been a discharge to Campbell, and so his directing Mr. Baldwin not to pay it to Campbell, and Baldwin's declining to pay to Campbell in consequence of. this prohibition of Knox's, if true, was an indirect, but very effectual discharge of Campbell from his obligation. And although all this may have been done by Knox, under the mistaken impression that Mr. Baldwin, as the judgo said, was a surer mark for his money, yet upon his finding that he is not likely afterwards to get his money from Mr. Baldwin, ho shall not be permitted to return upon Mr. Campbell, or his estate *13for it. For if the testimony given on the part of the defendants below is believed, it was a course entirely of Knox’s own seeking, without any solicitation of Campbell, or ever consulting his wishes in respect to it. By his interference he caused Campbell to credit Mr. Baldwin with the thirteen hundred and fifty dollars on the agreement for the purchase of the lands; and by his forbidding Mr. Baldioin to pay any portion of this sum to Campbell, he put it out of the power of Campbell to demand or receive it. If any loss has arisen from this course which has been adopted by him, he has been the occasion of it, and must bear it. This would even be the rule if Campbell and Knox were equally innocent in bringing about the cause which has, or is likely to result in the loss ; but I do not consider them equally innocent; for if there be fault, it lies altogether at the door of Mr. Knox. I think the court below instead of charging the jury as they did, ought to have told them, that if they believed the testimony of the witnesses on the part of the defendants below, it was their duty to find a verdict in their favor. I further think, that if the court had answered correctly, the hypothetical questions of the defendant’s counsel, as the judge was pleased to call them, that they ought to have been answered in favor of the defendants below ; and that there was error therefore in the court’s declining to' answer them.

Judgment reversed and a venire de novo awarded.