Hemenway v. Bassett
79 Mass. 378
| Mass. | 1859
Dewey, J.

1. The ruling of the court of common pleas, that the note having been given up by the plaintiff to the defendant to be cancelled, under the circumstances stated, the action therefore could not be maintained, was erroneous. The inquiry was open whether this was a payment of the note, or a mere release of the defendant from personal liability on the note, independent of the lien on the land. If the debt was not in fact paid, and the land was still to be charged with the same by the arrangement of the parties to this settlement, the mere giving up of the note would not discharge the mortgage.

2. The further ruling of the court, excluding the proposed evidence to show that the alleged conversion and the various trespasses set forth as the ground of the present action were all *381adjusted and settled by the parties at the time of the giving up of the note, and as a part of that transaction, was also erroneous; such evidence, in the opinion of this court, being competent, and not excluded by the written paper given by the plaintiff and executed on the 24th of April 1858.

Exceptions of both parties sustained