Appeal from, the Fifth Judicial District.

The complaint avers that in February, 1861, the defendant, Philip McCahill, was indebted for goods sold and delivered to Taaffe, McCahill & Co., in the sum of $1,784 64, and to Canfield, Pierson & Co. in the sum of $967 89; and that this indebtedness was at that time, for a valuable consideration, sold and assigned by said creditors to the plaintiff, and has not been paid, and prays judgment for the amount and interest.

The answer denies the allegations of the complaint, and by way of further defense alleges “ that on the-day of Dec. 1859, he (defendant) was indebted to Taaffe, McCahill & Co., and also to Canfield, Pierson & Co., with other creditors in various amounts, including all the indebtedness of this defendant contracted in the way of business; and that at said time a settlement and composition of all said debts was had and agreed upon by and between the defendant and said creditors, whereby the said Taaffe, McCahill & Co., ánd the said Canfield, Pierson & Co., with said other creditors, agreed with said defendant to accept and receive from him by way of composition, the sum of fifty cents on the dollar of said indebtedness in full payment and satisfaction of all such indebtedness, respectively, which the defendant did then agree with them to pay, and which this defendant, in pursuance of said agreement, did pay to all said creditors in full satisfaction and discharge of their several claims against him.

“ And all said creditors, including Taaffe, McCahill & Co. and Canfield, Pierson & Co., accepted and received the said payments severally in full satisfaction and discharge of the amounts so due them, as aforesaid, excepting the sum of ninety-nine dollars, a balance remaining due to said Taaffe, McCahill & Co., according to the terms of said settlement and composition on the seventh day of February, 1861, and which amount was garnisheed in the suit of Ballmer, Bell Go. v. Taaffe, MeOahill Go., by process issued out of the District Court in the Twelfth Judicial District, City and County of San Francisco, whereby defendant was restrained and prevented from paying the same, and still holds said amount subject to the decision in said action. And defendant avers that the accounts sued upon in this action are the same satisfied, settled, and discharged as above alleged.”

The replication denied the new matter set up in the answer.

On the trial, the defendant introduced in evidence an agreement of composition, of which the following is a copy.

“ In consideration of one dollar paid to me by my several creditors, a schedule of which is hereby attached, and in consideration of'their several accounts against me, amounting in all to about $12,000,1 hereby assign, sell, make over, and transfer, to William Higgins, their lawful agent and attorney, my whole stock of goods contained in my store in the city of Stockton; also all accounts, debts, and notes due me, with the understanding that they shall, through their agent, realize out of the same sufficient to pay each and every one of them fifty cents for every dollar I owe them, and that after this amount is realized they agree to place me again in possession of the remaining stock, uncollected accounts and notes. McCahill has the privilege of taking out of the proceeds of the goods and debts one hundred dollars per month for personal and family expenses. In witness whereof, I have hereunto set my hand and seal. San Francisco, Dec. 21st, 1859.

“ P. McCahill, [seal.]

“We, the undersigned creditors of P. McCahill, agree to the foregoing contract:

“ Janson, Bond & Co...................$1,442 04

“ Taaffe, McCahill & Co................. 4,122 07

“ T. Henderson........................ 886 69

“ H. Cohn & Co..................... 960 50

“ Durung, Donnelly & Co............... 446 83

“ L. & M. Sacks & Co................. 419 04

“ T. J. Coffin & Co..................... 318 12

“ Canfield, Pierson & Co................. 1,600 00

“ Jones, Tobin & Co................... 697 59

“ Myger, Wolf & Co.................. 337 75

“ S. Mikkol....'...................... 754 87

“ Meushbeuter & Bertherd.............. 229 52

“ Badger & Lindenberger................ 221 37 ”

The defendant then offered to show by witnesses that plaintiff’s assignors were present at the meeting of creditors at which the written contract was negotiated, and that the creditors had there agreed to fully release and discharge the defendant upon the payment of fifty cents on the dollar of their respective claims; and that the agreement was drawn up by the request of the creditors, and that by mistake the person who wrote it left out the words “ in fall satisfaction and discharge of their respective claims against defendant,” and that it was the intention of the creditors to discharge the defendant upon the payment of fifty cents on the dollar.

To this evidence the plaintiff objected, on the ground that the proof was in effect to vary a written agreement, and was inadmissible under the pleadings. The Court overruled the objection, and the plaintiff excepted.

The defendant also offered in evidence a copy of the writ of attachment referred to in the answer with proof of a notice of garnishee to him, which, under exception by plaintiff, was admitted.

The jury found a verdict for defendant, in accordance with which judgment was entered. Plaintiff moved for a new trial, which was denied, and from this order and the judgment the appeal is taken by him.