March, 1842. McGregor Town of CALEDONIA, of law will protect the rights of an assignee to a chose in action, after notice, equally with courts of equity; yet, as a general rule, it must be admitted that they have adhered to the formal objection that the action must be brought in the name of the assignor. If this had been an action of debt upon the judgment against the judgment debtor, it must have been in the name of the judgment creditor. So if the action had been for a default of the officer before the assignment, it must have been brought in the name of the assignor. But, in this case, the plaintiff is the only person injured. Hist right alone is affected by the default of the officer. No chose in action had ever accrued to his immediate assignor, nor to the judgment creditor. It would, as it seems to me, be exceedingly fine spun to hold that the right of action for the default of the officer, after the assignment, accrues to the judgment creditor, simply upon the ground that the judgment could not be assigned, at law, so as to give the action in form in the name of the assignee, though, as to all valuable purposes, it would be operative. I know of no rule of the common law which, in a case like the present, requires the action to be brought in the name of the judgment creditor, and I can see no use or convenience in it. In Clowes v. Hawley, 12 Johns. R. 484, the assignee of a bond was permitted to maintain trover in his own name against the obligor, who had got it into his possession and converted it, and the court say, it is no objection to the action that the assignee might, in the name of the obligee, have sued the bond.' The case proceeds upon the ground that, by the assignment, the plaintiff had acquired an interest, which courts of law will protect. In the case of Harrington v. Ward, 9 Mass. R. 251, which has been much relied upon by the defendant's counsel, the plaintiff and two others had signed a note as surety with J. N. to W., who sued all the signers, and the defendant's deputy attached the property of J. N. the principal. When judgment had been obtained, the execution was put into the hands of another deputy of the defendant, who demanded the property of the first deputy, who refused to deliver it, and the collection of a moiety of the execution was enforced against the plaintiff, and it was for the neglect of the officer, in not turning out the property attached, that the action was brought. March, 1842. Gilman v. Upon such a state of facts the court might well say the ac- CALEDONIA, tion would not lie. The judgment creditor made no complaint, nor the judgment debtor, whose goods had been attached, and there had been no assignment of the judgment to the plaintiff so as to create any privity. When the court say that the officer is answerable for his neglects to none 'but the plaintiff or the defendant in the suit,' it must be taken as applicable to such a state of facts as were then before them. It has been settled in this state that towns, under the statute, are liable for the neglect of their constables in the first instance, and that a suit against the constable is not necessary. The judgment of the county court is reversed, and judgment that the plaintiff's declaration is sufficient. Moore. HARVEY C. GILMAN V. WILLIAM MOORE. A note, payable in good well-finished plows, is not to be controlled by If, after this, the plows were still permitted to remain at the same place, ASSUMPSIT, on a prommissory note, given by the defendant to the plaintiff for fifty dollars, payable in good wellfinished plows, at the defendant's shop, in the month of February, 1840. On the trial in the county court it VOL. XIV. W. R. IV. 58 v. Moore. CALEDONIA, appeared that on the last day of January, 1840, the defendMarch, 1842. ant set aside plows to the amount of said note, marking the Gilman name of the plaintiff on each plow, and the same plows remained at some rods from the shop where they were first placed, through the months of February, March, April and May, when this suit was commenced. It did not appear that there was any other tender or turning out of the plows than above stated, or that any one examined them during the above period. About the first of May, it was noticed that the wheels had been taken from two of the ploughs after the last day of January. The plaintiff offered the deposition of one Calkins which tended to show that he was present when the note was given, and that it was agreed that, in case there should be any improvement made by the defendant in the pattern of their plow, the plaintiff was to have the improved kind in payment of the note, and it was further shown that the defendant did make several improvements upon said pattern, but the plows turned out were of the kind made anterior to the giving of the note, and not of the kind made when the note fell due. The deposition was objected to by defendants, and rejected by the court. The plaintiff requested the court to instruct the jury that, in order to have made a tender which would have satisfied the note, the defendant ought to have had the plows examined on the day the note fell due, and have then declared. his intention to apply them in payment of said note; but the court instructed the jury that if a sufficient number of plows, and of the kind and quality described in the note, were set apart for the purpose of paying this note, and were kept in that condition and for that purpose until and through the last day of February, 1840, and that this was done by the defendant and at the place of payment, which was admitted to be in this case at the defendant's shop, this would be a sufficient tender to defeat a recovery upon the note, notwithstanding they were originally turned out on the last day of January preceding, and no renewed act of turning out was performed by defendant. The jury returned a verdict for the defendant, and the plaintiff excepted to the decision and charge of the county court. E. Paddock, for plaintiff. We contend that there was no legal tender in this case. 1. The tender was not made when the note fel due, but was made one month before it fell due, and Gilman had no knowledge of the transaction. The note was payable in the month of February, 1840, in plows, at the defendant's shop; and the law is well settled that a tender of the plows should have been made in the latter part of the last day of February, unless notice had been given to the defendant that the payment would be made at an earlier day in the month. No such notice was given. Bac. Abr. Tender D., 14, 15, 16. Stark. Ev., 1396. 2. The tender was not sufficient in amount. If sufficient, it was because the wheels and coulters were in the plows on the last day of February; but that fact does not appear. No one examined the plows after the 31st day of January, until the first of May, when two of the wheels and coulters were missing. Therefore, it does not appear that the wheels and coulters were attached to the plows on the last day of February, at which time the note fell due. And it is not sufficient to say, because they were there on the 31st day of January, it is to be presumed that they were on the 28th day of February. The plaintiff wants the payment of his note in something more substantial and tangible than presumption. 3. Had the wheels and coulters been in on the last day of February, then the plaintiff could sustain an action against the defendant as bailee, for not keeping them safely, for they were "carried off some rods from the shop," and left exposed to be plundered. But no such action can be sustained, for the reason that no one knows whether the wheels were in or not when the note fell due. 1 Swift, 294. 4. It does not appear that on the last day of February the defendant intended the plows for the plaintiff, for he neither performed any act nor made any declaration manifesting such intent. After the last day of January he might have changed his mind and taken the wheels and coulters from the plows with his own hands and for other uses. 5. It is contended that the deposition of Calkins ought to have been admitted, because it did not contradict nor vary the written contract. And it is well settled that where CALEDONIA, March, 1842. Gilman v. Moore. CALEDONIA, parol evidence does not contradict the written, it is admissiMarch, ble. 3 Starkie, 1047. The note was payable in plows, and the deposition was to the quality only. 1842. Gilman M. Hale and W. Upham, for defendant. 1. The deposition offered in the court below was properly excluded. It went to contradict the note declared upon, and we take it to be well settled that parol evidence is inadmissible to supply or contradict, enlarge or vary, the words of a promissory note, or other instrument in writing. "Where the terms of an agreement are reduced to writing," says Mr. Starkie, "the document itself, being constituted by the parties as the true and proper expositor of their admissions and intentions, is the only instrument of evidence in respect to that agreement, which the law will recognize so long as it exists, for the purposes of evidence." 3 Starkie's Ev. 1002. It is also a well settled principle that, where an agreement has been reduced to writing, evidence of oral declarations made at the same time shall not be admitted to contradict or alter it. Pitkin v. Brainard 5 Conn. R. 451. Van Ostrand v. Read, 1 Wend. R. 424, 432. Ripley v. Paige, 12 Vt. R. 353. Pickering v. Dawson, 4 Taunt. R. 778. Tayloe v. Briggs, 1 Peters' R. 596. Shankland v. The Corp. of Washington, 5 Peters' R. 390. Hunt v. Rousmanier, 8 Wheat. R. 174. Sprigg v. Bank of Mount Pleasant, 14 Peters' R. 201. Williams v. Hathaway, 19 Pick. R. 387,314. 2. The charge in the court below was correct. If such plows as the note described were set apart for the plaintiff and marked with his name, and were ready for him at the place of payment, on the day it became due, the tender was good and this action must fail. The opinion of the court was delivered by BENNETT, J.-The note upon which this action is brought is payable in good, well-finished plows.' The parol evidence of the agreement, made at the time the note was given, that if there should be improvements in the pattern, the plaintiff should be entitled to receive on the note plows of the improved kind, was rightfully excluded. The effect of it is to vary the operation of the note, and, instead of the |