This is an action of trover for eight promissory notes.
The first objection to the ruling of the court below which was urged in the argument, is to the exclusion of the testimony of Stephen Hughes. The defendant offered to show by this witness, that the plaintiff stated to the defendant that in thp summer of 1856, he had witnessed some improper intercourse between the defendant’s wife and one Maxham. . As this transaction is stated in the bill of exceptions to have transpired some eighteen months after the property sought to be recovered for in this suit was put into the hands of the defendant, or his wife, and as it not claimed by the defendant that either he or' his wife have any right to retain the property in controversy, except such as is derived from what transpired at the time the property was delivered to them by the plaintiff on the 5th day of March, 1855, it is impossible for us to see what bearing the facts sought to be proved could have upon the defendant’s right to retain this property. It is suggested by counsel that there is an error in the exceptions as to the time of the conversation sought to be proved, but we must take the exceptions as they are.
But supposing the facts sought to be proved by Hughes, transpired prior to the delivery of the notes to the defendant, still, we do not find anything in this ease that would warrant the introduction of this testimony, as there is no evidence tending to show that the notes in question were delivered to the defendant, or his wife, as a compensation for any injury, supposed, or real, that had been done to her. It was claimed on the trial by the defendant’s counsel, that such was the fact, but there is no evidence tending to prove it, or that the defendant had ever made any claim on the plaintiff of that character. In fact, all the evidence of the defendant off this point goes to show, that the notes were voluntarily given by the plaintiff to the defendant’s wife. If this was so, the plaintiff clearly was not entitled to recover, whatever his motive may have been in giving them to her, and *574so the court below told the jury. And upon the question whether the notes were given to the wife of the defendant or not, the facts sought to be proved by Hughes were clearly inadmissible, as having no tendency to establish that fact, but rather the contrary, as it is not very probable that the defendant would one day be telling these scandalous stories about the plaintiff’s wife to him, and on another sitting down at the same table with them, in the most friendly manner (apparently), and delivering over to her this amount of property as a gift.
Again, it is insisted that admitting the facts to be as claimed by the plaintiff, the court erred in charging the jury that there had been such a compliance with the conditions, on which the plaintiff put the notes into the defendant’s hands, as to terminate the defendant’s right to retain them, and entitle the plaintiff to recover.
The plaintiff’s testimony tended to show- that the defendant was uneasy about the title to the land he bought of Prosser, there being mortgages upon it that had not been discharged upon the record, and for the purpose of quieting him, and to secure him against those mortgages, he gave the defendant a deed of the land and delivered over the notes in question, to be held until he should “get up the mortgages” and the mortgage notes. That at a subsequent time he did get the mortgage notes, and a quit claim deed from one of the mortgagees (the other mortgagee being dead) ; these notes he tendered to the defendant, and at the same time delivered to him his bond in the sum of two thousand .dollars, to indemnify him against the mortgage that was not discharged on the record. This bond the defendant accepted. Assuming all this to have been done, we think it clear that the defendant would have no right longer to retain the notes in question. The object for which the notes were deposited was evidently as a security against the mortgages; when the mortgage notes were paid and taken up, all danger from this source was at an end, and full and ample evidence thereof was furnished; the means of a perfect defence against them .was tendered him. These mortgages could not then be enforced either in law or in equity, and they were legally and equitably extinct, so far as any injury to the defendant was concerned, and'this we thhjk is all that it *575can fairly be inferred from the exceptions, the parties contemplated. There was no particular method agreed upon by which the object was to be accomplished, as in the case of Hoyt v. Swift, 13 Vt. 129.
But even if it could be said that there was not a technical compliance with the terms of the arrangement; still, when the defendant accepted the plaintiff’s bond, to indemnify him against the Hutchinson mortgage, he thereby waived all claim to such technical compliance on the part of the plaintiff, and accepted the bond in lieu thereof. That it was so offered and so accepted we think is apparent from the exceptions. And the defendant refused to deliver up the notes in question, not upon the ground •that the plaintiff had not complied with the terms of the agreement, but solely on the ground that they had been given to the wife of the defendant, and that she had the right to hold them, independent of any question as to the mortgages. ¥e think, therefore, that there was no error in the charge of the court in this respect.
But it is said the court erred in their charge to the jury as to the rule of damages. The general rule seems to be well settled that when trover is brought to recover for notes, or other dioses in action, executed by persons other than the defendant, but which the defendant has in his possession, and wrongfully withholds from the plaintiff, the rule of damages is the value of the property. This, prima facie, is the amount due on the instrument, but this may be rebutted by proof of its actual value.
But when the action is brought to recover for notes executed by the defendant himself, and which he wrongfully withholds, the rule of damages is the amount due thereon at the time of trial, without reference to the ability of the defendant to pay. The plaintiff, in such case, is entitled to a judgment for an amount equal to the debt which he has against the defendant, and which is discharged by such judgment.
As this action is brought to recover for notes executed by Prosser, and not by the defendant, the first of these rules is applicable here, unless the peculiar circumstances attending this case are such as to take it out of such general rule.
It appears that the plaintiff bargained with Prosser for the sale *576of a piece of land, and gave him a deed of it, to become good and valid' on the payment of ten notes of sixty dollars each. Seven of the notes now in controversy are a part of these ten notes. Prosser sold the land to the defendant and gave him a quit claim deed of it, and the defendant, as a consideration therefor, agreed with the plaintiff and Prosser to pay the plaintiff what was then due on these notes; the defendant subsequently paid three of the ten notes before he became alarmed about the title, and prior to the transactions that resulted in the execution of the deed by the plaintiff to the defendant, and the delivery of these notes.
The transaction between the plaintiff and Prosser was in the nature of a mortgage, by which the payment of the ten notes was secured upon the land. After Prosser deeded to the defendant, and the defendant had paid three of these notes, the plaintiff’s lien still continuing, it would seem that the remaining seven notes in the plaintiff’s hands must have been perfectly good, independent of the ability of Prosser to pay. Under these circumstances the plaintiff gives the defendant a deed of the land, and delivers over the notes, thus relinquishing his lien on the land, and giving the defendant a perfect title to it. Now if the object of the parties was, as cjaimed by the plaintiff, to indemnify the defendant against the mortgages, and the plaintiff had subsequently removed those incumbrances (as we find that he had), then it became the duty of the defendant to return the notes and give the plaintiff the same lien upon the land that he had relinquished; and if the title to the land had remained in the defendant, a court of equity would have compelled him to do it. But it appears that in December, 1856, and while the defendant was rightfully in possession of said notes and title, he sold this land to one Keyes, and for aught that appears, received the full value of it. This he did with the knowledge, and without objection on the part of the plaintiff.
So that it seems in this view of the case, that the defendant has received the full value of the land sold by the plaintiff to Prosser, and for which the notes in question were given, which notes the defendant agreed to pay to the plaintiff as the consideration for the deed from Prosser to him. Whether an action could be maintained against the defendant by the plaintiff, on this agree-*577meat to pay these notes to Mm, is a question that is not now necessary to determine. If an action could he maintained to enforce that agreement, then clearly the rule of damages in this case should he the amount due on the notes. And we think it equally clear, under the peculiar circumstances of this case, that as the defendant, by refusing to deliver up these notes, has made himself liable to an action therefor, the rule of damages should be the amount due on the notes at the time of trial.
These are the only questions made in the argument, and as we find no error in the ruling of the court below in regard to them, the judgment of the county court is affirmed.