¶1delivered the opinion of the Court:
¶2This was a suit brought by Daggett against Gage, upon a promissory note. The defense is, that Daggett had caused one Reese to be arrested on a ea. sa., and, in order to procure his temporary release, Gage had given the note sued on merely as security that Reese should surrender himself to the sheriff by the 8th of June; that, before that date, the time was extended by Daggett’s attorney, and again extended, and, on the day last agreed on, Reese offered himself in custody to several deputies of the sheriff, who declined to receive him. If the parol evidence by which these facts were proven, had been objected to on the trial, we should doubtless hold that the effect of the written instrument could not be thus varied. But no objection was made. Had there been, we cannot say the defendant would not have produced a cotemporaneous written agreement to the same purport. This proof having been admitted without objection, the case is clear. The other facts are undisputed. Reese did surrender himself at the time agreed upon between the parties, and notified the plaintiff’s attorneys. That was all he was required to do. The fact that the sheriff refused to take and hold him in custody, cannot prejudice either him or his security. The judgment must be affirmed.
¶3Judgment affirmed.