Curia, per

The defendant executed and delivered to the plaintiffs a deed dated 23d September 1840, whereby he guaranteed to them payment for goods which they might from time to time sell to one D. Kamme, to the amount of two hundred dollars. This was an action of covenant on that instrument to recover a balance appearing by the books of the plaintiffs to be due by Kamme, for goods sold to him. The guarantee was verbally revoked in May, 1841, after which time no further credit was given to Kamme. The deed recites that Kamme was, at the time of the execution, indebted to the plaintiff's. The goods charged to Kamme were not delivered to him, but to one Hertz.

The defendant’s specific grounds for a new trial, may be resolved into two. 1st. That at the time of the execution of the deed, Kamme was not in fact indebted to the plaintiffs, tho’ it was so recited in the deed ; and 2nd. that the goods were never delivered to Kamme.

It is not perceived in what way the representation by the plaintiffs, that Kamme was indebted to them at the time of the execution of the guaranty, if that was not the fact, could prejudice the defendant, or impair the plaintiffs’s right to recover in this action. Whatever effect the circumstance might have to prejudice the claim of the plaintiffs with the jury, the defendant had the benefit of it at the trial.

The second ground, which is the only one urged, relates to the sufficiency of the proof that Hertz was the agent of *355Kamme, to procure the goods charged to him. There was no direct evidence of the agency of Hertz. It was only to be inferred from the relations between himself and Kamme. Such proof is clearly competent, and is very frequent; indeed the competency was not denied in argument, but only the sufficiency of it to justify the verdict of the jury. Hertz and Kamme were tailors; Hertz had failed in July, 1840. At the time the credit was given to Kamme by the plaintiffs they both occupied the same store. Kamme says that from July to December, 1840, he was then clerk to Hertz, worked with him as journeyman, and they had been talking of going into partnership, tho’ the connection was not formed. Mr. Hanckel proved that it was his impression Hertz was the agent of Kamme. Without a knowledge of the character of the parties and witnesses, this proof seems not to be very satisfactory. But upon it the case was submitted to the jury. It is sufficient to support the inference that Hertz was the agent of Kamme. Possibly the jury might have inferred a combination between them to procure the goods on Kamme’s credit, and by Hertz’s agency, in such manner as to elude responsibility by Kamme. The case was peculiarly within the province of the jury, and they alone qualified to decide. The motion for a new trial is therefore refused.

dissenting. The entire evidence adduced at the trial is set forth in the Judge’s report. The plaintiffs, he thought, “had not sufficiently established their right to recover.” 1 am of the same opinion, for the following reasons. Kamme, the party guaranteed by Lawton, swears he never dealt any way with Smith & Groning; never got a piece of goods of them, and did not know that any goods were purchased in his name; gave no authority whatever for such a purchase; considered Hertz who took up the goods as worthless; had quit all connection with him from 1st. December 1840; appears in utter ignorance of the whole purchase made by Hertz, in his name. But before we can make Lawton liable we must assume that *356Kamme was the actual vendee of the goods. How else is Lawton ever to recover over against Kamme'? Kamme must be first made debtor to Smith (fe Groning. This is the issue; but how is the affirmative proved'? By the plaintiffs’s clerk Hanckel; he made the book entries altogether at the instance of Hertz or Smith; his entries were altered by Smith. There were erasures in the book; he never presented the account but to Hertz, nor dunned Kamme, nor had any communication on the subject with him. Mr. Hanckel appears as ignorant of any binding authority or reason for making Kamme debtor for the goods, as Kamme was of Hertz taking up such goods in his name. But Smith made such entries, and the witness “was impressed,” (fee., and “Smith corrected his entries.” If such book entries stood uncontradicted, they cannot prove Kamme the purchaser; and that is the very condition precedent to the verdict against his guarantee, Lawton, as well as his recovery over against Kamme. Assuredly Kamme may resist such recovery by Lawton. The evidence of Lawton’s son and that of Hanckel has both shewn, that it was easy to confound the account against Hertz, which Lawton refused to guarantee, with the goods taken up in the name of Kamme, with whom Hertz had been connected in former transactions. I have very full faith in jury trials, but cannot support a verdict against a guarantee when the plaintiffs’s evidence so very unsatisfactorily proves, it might be said loosely surmises, a debt against Kamme, which could not be established against himself by that evidence, and which is further utterly denied by Kamme.

The case ought therefore to be returned to the jury for reconsideration without prejudice to either party. It is due to that tribunal that they be allowed to reconsider in such extreme cases. This is done for their true value and respectability, as therefore used, in the State. It is the only way to render the constitutional principle of the trial by jury “forever inviolate,” that they reconsider, like all other tribunals, when they appear to have so clearly erred in the very gist of a case.