#### *Benj. J. Boulware*vs. *Cuthbert Harrison and others.*

Plaintiff having a money decree against husband and wife, to satisfy ■which the decree gave him the right to sell certain slaves settled to the sole and separate use of wife, took husband’s sealed note, payable at a future day, for the amount of the decree, and to secure the note took from husband a mortgage of the same slaves, and gave husband and wife a receipt in full for the amount of the decree: husband shortly afterwards died *insolvent:*— Held,

*1st.*That the acceptance of the note and mortgage was no satisfaction of the decree.

2d. That the contract between plaintiff and husband was so far to be respected, that plaintiff could not enforce his decree until the sealed note fell due.

*Before*Waudlaw, Ch. *at Fairfield, July,*1851.

Wardlaw, Ch. The general object of this bill, is for relief to the plaintiff, from the effect of a receipt given by him for a decree of this Court in his favor as executor; when there was, in fact, no payment, and his acceptance of another security was under mistake.

Thomas Boulware, by his last will and testament, dated March 28, 1839, amongst other things, appointed the plaintiff an executor thereof, and bequeathed to his daughter, Sarah, then an infant and unmarried, upon her marriage or attaining twenty-one years of age, the following slaves, namely: Prince, his wife, Eliza and her children, Milly, Ailsie, Bina, Lewis and Julia, with their future increase, for the sole and separate use of his said daughter, not subject to the debts or contracts of any husband during her natural life, and at her death to her issue then living, according to the statute of distributions; with a further contingent limitation to the children of testator, if she died without leaving issue. The testator died in 1842. His daughter, Sarah, intermarried in 1845 with-II. II. Paulling. Testator was seized and possessed of a large estate at the time of his death, hut ho owed considerable debts, for which ho made no adequate provision in his will. Plaintiff, in the execution of his trust as executor, sold some of the estate given specifically to legatees, and advanced *318large sums from bis own funds in payment of testator’s debts.— A suit accrued in this Court between the legatees and the executor, entitled, “Thomas B. Lewis, *per pro.*ami, vs. Benjamin Boulware, executor, and others,” to which Paulling and wife were parties; and at July sittings, 1846, a decree was made that the devisees and legatees pay to the executor the several sums ascertained to be due to him by the commissioner’s report, including the sum of $1601 61 from Paulling and wife; “ and unless paid by the first day of January next, that the said Benj. J. Boulware have leave to raise the same by the sale of such property of the several legatees and devisees as may be required to pay said demands, according to the sums to be paid by them respectively, as specified in said report.” After this decree the executor retained possession of Mrs. Paulling’s slaves, applying the avails of their labor towards the satisfaction of her debt to- him, but not much reducing the debt, as the slaves, from the large number of children, were worth little more than a support. On February 1, 1849, H. H. Paulling gave to the plaintiff his sealed note for $1^546 27, the balance then due by Mrs. P. under the decree, with interest from the date, payable on January 1, 1854; and as a security for the same, executed a mortgage to the plaintiff of the slaves bequeathed to his wife, then consisting of Prince, Eliza, Bina, Lewis, Julia, Jane, Sarah, Reuben and Charles; and plaintiff, in consideration thereof, gave a receipt in full from Paulling and wife, for the sum decreed for him against them. Mr. Me Cants, learned in the law, and the commissioner of this Court, drew the note, mortgage and receipt, and witnessed their execution ; but he was not called upon for any counsel as to the construction of the will, or the sufficiency of the mortgage as a security. The arrangement was made at the instance and for the accommodation of Paulling. At this time Paulling was a physician in good *practice;*but he died soon after in April, 1849, and his estate is represented to be insolvent. Cuthbert Harrison, as administrator of Paulling, has had the negroes in possession since Paulling’s death.

*319It is manifest that the plaintiff, in the change of securities for his debt, still intended to preserve his lien upon the negroes bequeathed to Mrs. Paulling. If he had accepted a security of a higher nature for his debt, his debt would have been extinguished. *Mills*vs. Starr, 2 Bail. 360: If he had accepted in payment any thing which produced satisfaction; or had accepted absolutely in satisfaction any valuable thing not money he would have been remediless; but a receipt is not a release; it is susceptible of explanation, and does not in law imply necessarily a satisfaction Of the whole debt. *Live*vs. Mosely, 2. Strob. 203; *SMrving*ads. *Sheriff,*2 Bice’s Dig. 155. I am little disposed, in most cases, to grant relief, on the ground of mistake of law, for I see very dimly any. distinction between ignoiance and mistake of law; but the present case seems to me to be stronger than the cases of *Lowndes*vs. *Ohisolm,*2 McC. Ch. 455,'and *Lawrence*vs. *Beau-Hen,*2 Bail. 623, by the authority of which .1 am bound. The plaintiff here occupies the favored character of a trustee. Without any^ pretence of compromise or speculation, in mere mistake, and with the professional assistance of an officer of this Court, he has acknowledged in writing the satisfaction of a decree, contrary to the fact, and has substituted a lien inferior in nature, and practically worthless. It is easy to place the parties in *statu quo*before the substitution. Under all the circumstances, with some hesitation, I have concluded to grant the plaintiff relief.

It is ordered and decreed, that the receipt, mortgage and note of February 1, 1849, described in the pleadings, be cancelled, that the defendant, Cuthbert Harrison, account with the plaintiff for the hire of the negroes of Mrs. Paulling, bound by the decree of Lewis *vs.*Boulware, and that the plaintiff be remitted to his original rights under said decree.. It is further ordered that the costs of Harrison be paid out of the estate of Paulling, if sufficient, 'Otherwise out of the hire in his hands; and that the other parties pay them own costs.

The defendant, Sarah Paulling, appealed, on the grounds :

1. Because the receipt given by the complainant to H. H. *320Paulling, was an extinguishment of the decree now sought to be enforced.

2. Because the present decree is contrary to law and evidence.

Boyce, for appellant.

Hammond, contra.

The opinion of the Court was delivered by

JOHNSTON, Ch.

We are perfectly satisfied that the Chancellor should have granted relief to the plaintiff, under the circumstances stated in his decree: but we do not entirely concur in the measure of relief decreed by him.

It is perfectly manifest, that the decree held by the plaintiff as executor, was not satisfied by the security taken by him from Doctor Paulling.

If ho who holds a demand for money, receives in satisfaction a horse or a picture, or any other specific chattel, this amounts to payment, and is as effectual a satisfaction as if the whole demand were paid in money.

And if ho accepts in payment another security of higher grade, the demand which ho holds is extinguished and satisfied.

But it is plain that satisfaction in this case has accrued in neither of these ways.

The receipt for money given by the plaintiff, is not conclusive where it is made to appear that no money was paid. The receipt is nothing more than the admission of the party: and if it had been proved in this caso that lie had admitted he had received the amount of his decree in money, he might still prove, as he has dono here, that the fact was otherwise: and that he had received Mo money.

This demand, under the decree, can be extinguished only by payment or a release; or by proof of a contract equivalent to a release.

When the circumstances of this case are investigated, it is palpable that the plaintiff intended to give up his decree upon receiving a verbal lien on the negroes.

*321The lien which he did receive was one which Paulling, the husband, was incapable of creating : for, by the very terms of the will, the negroes were the sole property of Mrs. Paulling, and not subject to the disposition of her husband. A plainer case of mistake is seldom presented.

But we think the contract between Paulling and the plaintiff is so far to be respected, that the plaintiff is not entitled to collect the money before the expiration of the indulgence he stipulated to give.

Neither is the administrator of Paulling bound to account for the hire of the negroes. They constitute no part of the estate of his intestate ; and he is not responsible for them hire; I mean he is not responsible to the plaintiff, but to Mrs. Paulling, the owner of the property, if he received the hire.

The contract between the parties should be enforced, as far as it can be : and the plaintiff is then entitled to fall back upon his decree, at the expiration of the credit he has engaged to give, and enforce it; so far as he may need the benefit of it.

It is decreed that the administrator of Doctor Paulling, do come to an account for the estate of his intestate, and pay to the plaintiff, on the 1st of January, 1854, upon his demand, the due proportion thereof, to which he is entitled, in the due course of administration; and that after the 1st day of January, 1854, the plaintiff be allowed to enforce his decree, referred to by the Chancellor, for whatever balance may remain due him.

As the Court has not the pleadings before it, it will not undertake to decide how far Paulling’s administrator may be entitled to claim whatever amount his estate may be obliged to pay, against the wife, for the benefit of whose separate estate his contract appears to have been made. The Court, therefore, reserves that point.

Let the case be remanded to the Circuit Court, for further proceedings under the decree as now modified.

It is also ordered that the decree be modified by directing the-costs, so far as they cannot be made out of Paulling’s estate, be-paid by the defendant, Mrs. Paulling.

*322Ordered that the decree, in all respects except as above modified, be affirmed.

DuNKiN and DargaN, CC. concurred.

Wardlaw, Oh. absent at the hearing.

*Decree modified.*