The facts, which the defendants offered to prove, that the officer was instructed to collect on the execution $600 or obtain good security therefor, and that, pursuant to such directions, he did obtain the note for that amount, being the note now in suit, and thereupon discharged the party from arrest, were evidence tending to show that the company had agreed to take $600 in full satisfaction of the execution. And the agreement of the parties, made before the judgment was rendered, to settle the whole claim for about the same sum, was admissible for the same purpose, and as bearing on the question whether there was an agreement between the parties that the payment of the Bum due on the mortgage pledged to said company as collateral security should be applied, when collected, to the payment in full of the note in suit.
Exceptions sustained.
At a second trial before Metcalf, J., after the plaintiff had introduced the note and rested his case, the defendants, in *52opening, made the same offer of proof as at the first trial, and proposed to contend that the note in suit was paid by the money received by the plaintiff from Dunnels.
Irish, being called as a witness for the defendants, testified that the plaintiff put into his hand the execution against William Pulsifer, and stated to him that the company had security from Pulsifer, but that it fell §600 short of the amount due on the execution, and that Irish must collect §600 or obtain good security for it, or arrest said Pulsifer; that he told said Pulsifer what the plaintiff had directed him to do, and said Pulsifer thereupon gave the note in suit; but that he did not arrest said Pulsifer.
The defendants then offered in evidence the said agreement, “ for the purpose of showing the amount that was due from said Pulsifer to the plaintiff, as agreed on by the parties; ” and requested the judge to rule, that “ if the note was taken in satisfaction of the judgment, and if the debt for which the Dunnels mortgage was given was the same as that for which the judgment was obtained, then the money received by the plaintiff upon the mortgage would discharge the note, either in whole or in part, as the case might be.” But the judge refused to admit said agreement in evidence, “ not deeming it competent to show that the former judgment was wrong and erroneous.” The verdict was for the plaintiff, and the defendants alleged exceptions, which, after argument by I A. Gillis, for the defendants, and Lord Sf Endicott, for the plaintiff, were now, upon the authority of the previous decision,
Sustained.