The testimony offered in the court below was competent to sustain the action, and ought to have gone to the jury under that direction. The plaintiff may give a note in evidence under the money counts. The original loan of 300 dollars was amply proved; and the defendant got possession of the notes given for the 300 dollars, by means of a base fraud, and there was no payment or extinguishment of the original debt. The testimony of Daniel and Caleb Brainerd, and of Hunn Munson, and the letter of the defendant, were conclusive *82proof, standing uncontradicted, that the notes were never paid, and that the deed to the plaintiff Was a mere fraudulent pretence, and one that was not even carried into effect. The deed was not recorded according to the original agreement, for that would have exposed the fraud at the time. This is not an action for a fraud. The suit is for the original debt, and the only question is, whether the debt is to be considered as paid or extinguished by the transaction relative to the deed. It would be an affront to common sense and to justice, to allow any weight or effect to such a fraud. The case of Wilson v. Foree (6 Johns. Rep. 110.) is very much in point. The plaintiff brought an action of assumpsit for goods sold. The defendant set up payment, and the plaintiff offered to prove fraud in the defendant in the special contract which the defendant set up as payment, and the court of common pleas in Dutchess rejected the proof offered on the part of the plaintiff, and nonsuited him; and this court, on error, reversed the judgment, and held that the evidence ought to have been received; for the fraud rendered the special contract set up in discharge of the debt, null and void.
1'he judgment below must be reversed; and the plaintiff is at liberty to sue out a venire from this court, returnable at the Ontario circuit.
Judgment reversed.