
    Williams vs. Terrell.
    A parol defeasance cannot be pleaded at law to defeat an agreement under seal.
    Allen S. Williams brought his action of debt, in the Circuit Court of Weakley county, against- Peleg Terrell, and Jeptha Terrell, executor of John Terrell, deceased, on the following instrument under seal.
    “$200 — On or before the 1st day of September next, we or either of us, promise to pay Allen S. Williams or order, two hundred dollars, for value received. January 10, 1844.
    PELEG TERRELL, [Seal.] JNO. TERRELL, [Seal.]”
    To a declaration in the ordinary form the defendants pleaded a parol defeasance in the words and figures following:
    “State of Tennessee, ) Weakley County. )
    
    Whereas, Peleg Terrell and John Terrell have this- day executed their joint note, payable to myself, for two hundred dollars, and due the 1st day of September next: the condition of the above named note is this, that if the said Terrells should not succeed in gaining some negroes, which formerly belonged to Martha Prater, deceased, in the State of Illinois, Gallatin county, the above named note to be void, otherwise to remain in full force and virtue, this 10th day of January, 1844.
    A. S. WILLIAMS.
    Test — R. Thompson.”
    The plaintiff demurred to the defendants’ plea, and, upon his demurrer being overruled and judgment given against him, appealed to the Supreme Court.
    
      Etheridge, for plaintiff,
    cited Chitty on Con. 422; 3 Johns, Rep. 68, 14 lb. 287; 13 lb. 87; 19 lb. 129; 9 Cow. 37; 11 Mass. R.. 342; 9 Wend. 336; 13 Wend. 71; 3 Com. Dig* 360; 21 Wend. Rep. 628.
    
      W. R. Harris, for defendants,
    cited 3 Johns. Rep. 527; 20 lb. 462; 2 Wend. Rep. 587; 6 lb. 291; 4 Cow. R, 597; 2 lb. 479; 3 Dane’s Ab. 365.
   Green, J.

delivered the opinion of the court.

This is an action of debt on a bond.

The defendants pleaded a parol defeasance, which stipulated, that if certain property should not be recovered, the writing obligatory, declared on should be void. To this plea the plaintiff' demurred.

The court overruled the demurrer, and gave judgment for the defendants, from which judgment the plaintiff appealed to this court.

The technical rule, that a parol agreement cannot be pleaded at law, to defeat, an agreement under seal, cannot be departed from without destroying all distinction between sealed and unsealed instruments. Chitty on Contracts, 423-3-2; Starkie on Evidence, 548; Clark vs. Henry, 2 Cowan’s Rep. 324; 21 Wend. Rep. 628.

Cases have been decided, that seem to militate against this rule, but most of the cases referred to by the counsel for the defendant in error rest upon a different principle; — As where there had been a substantial performance, parol evidence was admitted to prove the waiver of a literal performance. This is a mere interference with the fulfilment of the contract, and is not an attempt to prove that its terms were different from those stipulated in the sealed instrument.

The judgment must be reversed, and judgment rendered for the plaintiff  