#### William Johns *versus*Stephen M. Church.

The plaintiff in replevin derived his title to the goods replevied, under a mortgage made to him by a third person to indemnify him against a promissory note described in the mortgage as having been given for a certain sum, but the note produced by the plaintiff was for a different sum; and the mortgage was alleged by the defendant to have been either fraudulent or discharged. It was *held,*that the plaintiff might prove by parol evidence, that the note produced was the one referred to in the mortgage.

In a receipt given to a deputy sheriff, the receipter, after enumerating certain goods, says,-—•**the property of S. attached on a writ, &c. all which I promise to redeliver on demand.” The goods were redelivered accordingly to the officer, and the receipter immediately afterwards replevied them as his own property. It was *held,*that he was not estopped by his written receipt, nor by the redelivery of the goods, to deny that they were the property of S.

Replevin of a mare, a cow and several other chattels.

The cause was tried before *Morton*J., and the question submitted to the jury was, whether the chattels were the prop erty of the plaintiff.

The plaintiff claimed to hold the property by virtue of twc mortgages given to him by one Sperry, to indemnify hiir against his liability as surety for Sperry on a note to El Barnes, of September 30, 1829, which was described in the mortgages as a note for $236. The plaintiff offered in evidence a note for $ 256; to which the defendant objected. The plaintiff offered parol evidence to prove that this was the note intended to be secured by the mortgages, and'that he held no other note against Sperry at the time when the mortgages were made ; to which evidence the defendant objected. The judge admitted the note and the parol evidence to go to the jury.

The defendant, who, as a deputy sheriff, had attached the *565chattels as the property of Sperry, on a writ in favor of one Dewey, contended that the mortgages were fraudulent and void as against creditors ; — and if not so, that the condition of the mortgages had been performed, and so the property was discharged of the plaintiff’s claim ;—and, if neither of these grounds should prevail, that the plaintiff had released and dis charged his claim or lien on the property.

It appeared that Dewey was informed of the plaintiff’s mortgages, before he commenced" his action against Sperry; and that when the defendant went to make his attachment, the plaintiff, in order to prevent a removal of the property, agreed to give a receipt for it to the defendant, and that it was not actually seized by the defendant when he returned his attachment of it. The defendant produced and relied upon this receipt, which was as follows : — “ Received of Stephen M Church, deputy sheriff, one bay mare, &c. (enumerating the articles,) the property of Stephen Sperry, attached on a writ in favor of George Dewey, returnable at the February term of 1831, all which property I promise to redeliver on demand. William Johns.” After Dewey had obtained judgment and execution against Sperry, and when the execution was in the defendant’s hands, the plaintiff delivered the property to the defendant in discharge of his undertaking in the receipt, and before it could be sold on the execution he took it out of the defendant’s hands by the present action of replevin. The defendant contended, that the receipt and the facts above stated were conclusive upon the plaintiff and amounted to a perfect defence. The plaintiff offered evidence to explain this transaction, and tending to show, that when the property was attached and receipted for, it was agreed between the plaintiff, the defendant and Dewey, that Dewey should pay the plaintiff the amount secured to him by the mortgages, and have the benefit of attaching the property ; that when the plaintiff found that Dewey refused to pay him, he delivered the property to the defendant for the purpose of getting discharged from his liability on his receipt and of claiming the property under his mortgages, and that when he delivered the propérty he gave notice to the defendant, that if he attempted to sell the property on the execution, he should commence an action against *566him. This evidence was objected to on the part of the defendant.

The jury were instructed, that the receipt and the delivery of the property to the defendant were strong evidence in support of the grounds of defence ; that they were not however conclusive, but might be explained ; that if the jury, upon the whole evidence, believed that the mortgages were *bona, fide,*and that the conditions of them had not been performed, and that the plaintiff had not relinquished his lien or claim under the mortgages, then they should find a verdict for the plaintiff; otherwise, for the defendant.

The defendant’s counsel excepted to the above instructions. The jury returned a verdict for the plaintiff; upon which judgment was to be rendered, unless the above evidence was improperly admitted or the above instructions were erroneous ; in either of which cases a new trial was to be granted.

*Sept.*21 *st.*

*Jones*and *Nash*for the defendant.

The, plaintiff is estopped, both by bis receipt and by his delivery of the property to be applied on the execution, to deny that Sperry was the owner of the property. Co. Lit. 352 *a,*and note 306 ; *Knox*v. *Whalley,*1 Esp. Rep. 159 ; *Nash*v. *Turner,*ibid. 217; *White*v. *Swain,*3 Pick. 368 ; *Chapman*v. *Searle,*ibid. 38 ; *Wallis*v. *Truesdell,*6 Pick. 455 ; *Charlemont*v. *Conway,*8 Pick. 411 ; *Jewett*v. *Torrey,*11 Mass. R. 219 ; *Lyman*v. *Lyman,*ibid. 317.

The evidence of notice to the defendant, that in case he attempted to sell the property on execution, the plaintiff would commence an action against him, was inadmissible.

The parol evidence, to show that the note produced was the one referred to in the mortgages, was inadmissible, being contradictory to the written instruments. 3 Stark. Ev. 999, 1002, and note ; *Meres*v. *Ansell,*3 Wils. 275 ; *Atherton*v. *Brown,*14 Mass. R. 152; *Fitzhugh*v. *Runyon,*8 Johns. R. 292 ; *Crocker v.*Crocker, 11 Pick. 252; *Parker*v. *Parker,*17 Mass. R. 370.

*Bishop*and *Kellogg, contra,*

cited to this last point, 3 Stark. Ev. 1050, 1053 ; *Rex*v. *Scammonden,*3 T. R. 474 ; *Rex v. Laindon,*8 T. R. 379 ; *Tucker*v. *Welsh,*17 Mass. R. *567165 ; *Overseers &c. of New Berlin*v. *Overseers &c. of Norwich,*10 Johns. R. 229 ; *Baker*v. *Briggs,*8 Pick. 123.

*Sept. 22.d*

Putnam J.

delivered the opinion of the Court. The plaintiff c.jiaims the property under two mortgages from Sperry. Tb/e defendant claims it as belonging to Sperry, and liable to taken and levied on by process of law for the payment of y'iiis debts. The mortgages were produced, and it was con- / tended by the defendant, that they were fraudulent as against creditors, or if not, that they had been satisfied. They appear to have been given as collateral security, to indemnify the plaintiff from liability as surety for Sperry on a note to Eli Barnes, of September 30, 1829, for $236. But the plaintiff produced such a note for the sum of $ 256, and not $ 236 ; and then offered evidence to show that this was the only note that he ever signed as surety for Sperry, and that the mortgage had not been discharged, but that the plaintiff was still liable to the payment of the debt thus payable to Barnes.

It was objected that this is contradicting the writing by parol evidence.

*We*should here consider what were the questions to which this evidence applied. They were, whether the mortgages were fraudulent, and whether they had been paid. As between the parties to the note and mortgages, it was certainly competent to correct any mistake that had arisen in the conveyancing. The mistake would not make the transaction fraudulent.

But the defendant contended, that as no note was produced exactly corresponding with that mentioned in the mortgages, the presumption would be, that there was such a note once in existence, but that it had been paid or discharged.

It was, we think, perfectly competent for the plaintiff to rebut this presumption by the parol evidence which was offered, that he never did sign as surety any other note than that for $ 256, and that his liability continued on that note. It was a broad question of fraud, or of payment and discharge ; and such evidence, we think, was clearly applicable, especially between the parties who are now contending.

Then it is said, that the plaintiff is estopped by the accountable receipt which he gave to the defendant; which has been *568delivered up as having accomplished its object \ We think not, and for the reason suggested, viz. that the contract has been performed, and that the estoppel should not extend beyond the terms and duration of the contract or accountable receipt. The plaintiff agreed to hold that property as it claimed by the defendant under his attachment, as the proj erty of Sperry, until it should be delivered. If the defendant had demanded the property and the plaintiff had set up in defence that it belonged to himself and not to Sperry, he would not have been permitted to avail himself of such defence, contrary to his engagement to keep the goods until the defendant should call for them as the property of Sperry.1 But the plaintiff has delivered the property to the defendant in full discharge and performance of his contract. And we think that the officer then held the property as when he originally attached it. If it really belonged to Sperry, the attaching creditor will hold it; if it really belonged to the plaintiff, he shall hold it, and his mouth shall not be shut against any explanation that he may offer, for admitting that for a time he held it as the property of Sperry. It would be a strong fact against him, but not conclusive. It would be analogous to the case of a man’s taking a lease for a year, of his own land ; during the year he shall not question the title of his landlord ; but after the year he may set up his legal right against him who had been the landlord, as well as against any other persons.

The plaintiff in the case at bar has succeeded in disproving the allegations of fraud, and of settlement of these mortgages. The attaching creditor knew from the beginning, (that is, before he made his attachment,) of the nature of the plaintiff’s claim. He took the property subject to the plaintiff’s rights. When it was redelivered to the defendant, explanations to this effect were made. There has been no concealment on the part of the plaintiff... And upon the whole matter the Court is of opinion, that the judgment should be rendered according to the verdict.

1

*Bursley*v. *Hamilton,*15 Pick. 40; *Robinson*v. *Mansfield,*13 Pick. 144. But see *Fisher*v. *Bartlett,*8 Greenl. 122; *Webster*v. *Harper, 7*N. H. R. 594. So, the receipter, in an action by the officer, upon the receipt, cannot be permitted to prove, that the goods were not actually attached by the plaintiff *569*Lowry*v. *Cady,*4 Vermont R. 504; *Spencer*v. *Williams,*2 Vermont R. 209; *(Men*v. *Butler,*9 Vermont R. 122; *Morrison*v. *Blodgett,*8 N. H. R. 255. See *Wakefield*v. *Stedman,*post, 562.