ORANGE, 1842. Peach v. Mills. trine of estoppels to say that a party shall go into all the collateral and incidental conclusions at which a jury arrive, in coming to a verdict, to estop his adversary on each of the facts so found, and that while they are not directly in issue. Such was the finding offered to be proved and admitted. Justice and equity require a decision in favor of the plaintiff, if the law were doubtful. But the cases of Fairman v. Bacon, 3 Conn. R., and Towns v. Nims, before cited, are While the defendant would defeat justice by a technical objection, by an odious estoppel, the plaintiff surely should not be deprived the benefit of technical objections in its support. decisive of the law. As to the fifty cents, this is clear of the question of payment or no payment, by the finding of the auditor. The jury did not find that not delivered; therefore, the estoppel, if one, does not apply to this. As to the cellar stairs, the case finds them to be the plaintiff's property, and that the defendant converted them to his own use. A party may always waive a trespass for taking and converting personal property, and bring trover; or treat it as a sale, and bring assumpsit. There can, therefore, be no objection to a recovery of this item, in this action. Hill v. Davis, 3 N. H. R. 384. Bull. N. P. 130. Chitty on Contracts, 18, 19. L. B. Vilas and S. Austin, for defendant, contended, 1. That the plaintiff's claim for money paid upon a note cannot be the ground of an action, and, 2. That the question, whether the money was paid or not, was passed upon by the jury, in the suit upon the note, and was, therefore, res adjudicata. 1 Stark. Ev. 223, note. 16 Johns. R. 136. The opinion of the court was delivered by WILLIAMS, Ch. J.-The plaintiff cannot maintain this action. The first claim of the plaintiff, for the sum of thirteen dollars and fifty cents paid on a note, is wholly groundless in any view. The authority of the case of Slasson v. Davis, 1 Aikens, 73, is decisive against the plaintiff that he never could have had any action on book therefor. Moreover, when the note on which the payment was made was sued, the plaintiff appeared, claimed this payment, and had a trial and judgment thereon. Whether, therefore, this sum is to be treated, as the plaintiff now claims it, as a payment on the note, which he says has never been applied, or as a subject already adjudicated, no action can now be maintained to recover it. on. The same remark will also apply to the charge for the fifty cents; and, although on the facts, as now found by the auditor, it would appear that this might have been once recovered of the defendant, yet, when we find the plaintiff contending, on the trial of the action of Mills against him, on the note, that this sum was paid on that note, and endeavoring to sustain the claim until a verdict was found against him, he cannot now be permitted to maintain an action therefor and sustain it by his own oath, and wholly change the ground on which he has once claimed it, and which has been decided against him by the verdict of a jury and a judgment of court thereThis claim, together with the other, must be considered as res adjudicata, and cannot be again litigated in this, or any other action. The opinion of the jurors, or their statements of their views, or the ground on which they found their verdict, is of no importance. It is sufficient that the plaintiff claimed this sum, urged it on the consideration of the jury and took his chance for a verdict, and they have passed thereon. The plaintiff cannot, by shifting his claim, take another chance to substantiate it before another tribunal. The case of Brockway v. Kinney, 2 Johns. 210, as well as the case of McGuinty v. Herrick, 5 Wendell, 240, are strong, if not conclusive authorites against the plaintiff as to both of these claims. The claim for the cellar stairs is wholly unfounded, as there was no contract, express or implied, which would justify the plaintiff to charge them on book. If the plaintiff has any cause of action therefor, it must be an action of trespass vi et armis, and, for property forcibly taken out of the possession, and against the will of the owner, I have never learned that he could charge the same in account and maintain an action of book therefor. Judgment on the report must be entered for the defendant. ORANGE, March, 1842. Peach v. Mills. ORANGE, - March, 1842. Ordway v. Bacon. MOSES ORDWAY V. LAMENT BACON. In an action against a sheriff for the default of his deputy in not taking bail, and for making a false return in a suit where the deputy returned that he had taken good and sufficient bail,' but no person's name was indorsed on the writ as bail, it was held that the deputy, having been duly released by the sheriff, was a competent witness to prove that when the writ was delivered to him for service, the plaintiff directed him not to take bail, and that such direction was a bar to the action. ACTION ON THE CASE, against the defendant, as sheriff of Orange county, in two counts. In the first count, the plaintiff alleged, substantially, that he prayed out a writ in his favor against Newell Ordway, and delivered it to Benjamin H. Adams, a deputy under the defendant, to serve and return; that the said Adams served said writ by arresting the body of said Newell, and neglected either to commit him to jail or to take bail on the writ, but suffered him to go at large; that the plaintiff recovered judgment in said suit against the said Newell, upon which an execution issued and was seasonably delivered to a legal officer, who, within its life, made a return that he could find neither the body nor estate of the said Newell whereof to levy said execution. In the second count, the plaintiff set forth the return of said Adams, indorsed upon the writ against Newell Ordway, which is as follows: } 'State of Vermont, > At Tunbridge in said county, this 'Orange county, ss. third day of November, A. D. 1837. Then by virtue of this writ I arrested the body of the 'within named defendant, read the writ in his hearing and 'and have sufficient bail. 'Attest. B. H. ADAMS, D. Sheriff.' And the plaintiff alleged that said return was false in this; that the said Adams did not arrest the body of said Newell, and did not take sufficient bail for his appearance, as, by law, he should have done; and the plaintiff set forth the recovery of a judgment in the suit in his favor against said Newell and the issuing and return of an execution, as in the first count. Plea, not guilty, with notice of special matter. Issue to the court. On the trial in the county court, the plaintiff having read in evidence the writ, judgment, execution and officer's returns in the suit in his favor against Newell Ordway, the defendant called the said Adams as a witness, he having been duly released by the defendant, to prove that when the plaintiff's writ against Newell Ordway was delivered to Adams for service, the plaintiff directed him not to attach property nor require bail of said Newell on said writ. The plaintiff objected to these facts being shown by said Adams, notwithstanding he was duly released from his liability to the defendant, but the court overruled the objection and admitted Adams to testify, and, from his testimony, said facts were proved. It appeared that no person's name was indorsed upon the writ in favor of the plaintiff against said Newell, as bail. The county court rendered judgment for the defendant and the plaintiff excepted. W. Hebard, for plaintiff. Was Benjamin H. Adams properly admitted as a witness to contradict his own return? 1. We say he was not, because it was not proper to contradict the return made upon the writ against Newell Ordway by parol testimony. By looking at the return it will be seen that his testimony contradicted it, and by thus permitting him to be a witness, he was, by his own oath, allowed to contradict his own return, and furnish an excuse for his own negligence. The return becomes a part of the record and can no more be contradicted by parol than any other part of the record. If an officer is allowed to justify his own act by his own return, he certainly ought to be held liable when the return' makes proof against him. Parol evidence is not admissible to prove that a deed, absolute upon the face of it, was given as a mortgage to secure a debt. Reading v. Weston; 3 Conn 117. Burton v. Jones, 3 Conn. 186. 2. To allow the deputy to contradict his return operates unjustly upon the plaintiff and as a surprise. The plaintiff sees the return upon the writ. He is not only at liberty, but he is bound to understand it as meaning just what it reads. And from that he judges of the amount of indemnity and ORANGE, v. Bacon. ORANGE, March 1842. Ordway υ. Bacon. security which he already has for the judgment which he expects to recover against the defendant. "The law makes the sheriff a certifying officer of his own doings upon precepts which are put into his hands for service; therefore his return, as sheriff, is conclusive evidence against himself, and is prima facie evidence of the facts certified against third persons." Hathaway v. Goodrich, 5 Vt. R. 65. Stanton v. Hodges, 6 Vt. R. 64. If his return is conclusive, it could not be contradicted by parol, or in any other way. The receiptor, when sued by the sheriff upon his receipt, cannot set up as a defence that the property, described in the receipt, was not attached and delivered to him. Allen v. Butler et. al. 9 Vt. R. 122. If the judgment of the county court stand, the plaintiff loses his whole debt and cost,—and he loses it by the false return of the deputy. 3. Adams ought not to have been admitted to testify, because he was directly interested, notwithstanding the sheriff's discharge. The deputy is equally liable with the sheriff for the acts complained of, and the sheriff, of course, could not discharge him. Rev. Stat. p. 75, 21. Hutchinson v. Parkhurst, 1 Aikens' R. 258. 4. The directions, given to the deputy before service, do not vary his liability in case he does not follow those directions. In this case, the deputy arrested the body of Newell Ordway, and, by permitting him to go at large, without bail, made the sheriff liable as for a voluntary escape. Pulver v. McIntyre, 13 Johns. 503. W. Upham, for defendant. 1. Benjamin H. Adams was properly admitted as a witness for defendant, in the court below. His interest in the event of the suit was removed by the defendant's release. The objection to the competency of a witness, on the ground of interest, is always removed by an extinguishment of that interest, by means of a release, executed either by the witness himself, or by those who would have a claim upon him, or by payment. 2 Starkie's Ev. 758, 759, and cases there cited. Yuran v. Randolph, 6 Vt. R. 369. Jewett v. Adams, 8 Greenlf. R. 30. The case last cited was an action against the sheriff for the neglect of his deputy, and the deputy |