The opinion of the Court was delivered by

The defendant contends that the oxen in question, though once the property of the plaintiff, had been . conveyed by him to the defendant 'absolutely, as appears by the bill of sale. The plaintiff says they were conveyed conditionally, and as collateral security for the payment of the $50. In Jewett v. Reed, 5 Greenl. 96, this Court decided-that where . both parties proved that a bill of sale, though absolute in its terms, was intended only as collateral security for a debt due; and all was done in good faith, the transfer was a mortgage. In the case before us the defendant introduced the bill of sale, and also the $50 note, both of the same date, and offered to give up. the note. He also introduced Webster as a witness, who *355testified that both parties acknowledged, or stated, that the oxen were put into the hands of the defendant as security for the •payment of the $50. The same fact was also proved by the plaintiff, though objected to. Admit that it was not admissible, still it would be no ground for disturbing the verdict; for the proof of the fact by the defendant himself was sufficient. All the evidence in the cause discloses that the contract was not, when made, intended as a sale, but a mortgage. Why else was the note offered in evidence with the bill of sale, and also offered to be given up. The defendant introduced evidence to show that after the bill of sale and note were given, the parties had varied the terms of the original contract by a subsequent one. It was contended, that by the proof introduced for that purpose by the defendant, he had a right to retain the oxen as his own absolute property, if the note should not be paid on demand ; and that in January, 1830, the defendant demanded payment within one week, or that the oxen should be delivered up to him. Under the instructions of the Judge on this point, the jury were at liberty to return a verdict for the defendant; but it seems that they did not repose confidence in the proof adduced to establish this defence.

Why then is not the plaintiff entitled to recover on the facts which the verdict has established ? It appears that on the 2d of March, 1830, the oxen then being in possession of the defendant, the plaintiff tendered to him the sum of $52,50, in payment of the note and interest, being sufficient for that purpose, and then demanded the oxen. The question was pertinently asked in the argument by the plaintiff’s counsel, “ If “ the demand of payment of the note, made in January, 1830, “ entitled the defendant to hold the oxen as his own absolute “ property, why did he borrow them of the plaintiff in Febru- “ ary following ?” Is not this proof that he did not then consider them as his ? There is no proof of any act on his part, after that time, and prior to the tender ; so that when the tender was made, the absolute property of the oxen was vested in the plaintiff and the action is maintained.

The objection made to the verdict, as to its amount, on account of the non-deduction of the sum tendered, from the *356sum found as damages, seems not to be regularly before us. No particular instruction was given or requested; nor is the objection in any mode reserved for our consideration. Accordingly, and for the reasons above given, there must be

Judgment on the verdict.