The jury having been instructed that they were not to consider as evidence the matters alleged in the plea in abatement filed by Hunt in Doak’s action against him, the plaintiff has no legal ground of exception to the admission of that plea in evidence. There is no reason to apprehend that its admission could have prejudiced the minds of the jurors. Batchelder v. Batchelder, 2 Allen, 105. Ellis v. Short, 21 Pick. 142.

The jury were rightly instructed that it was for them to consider and determine what inference they would draw from *176the omission to call as witnesses the mortgagor, mortgagee, and another person who had knowledge of the mortgage and of the circumstances attending it. Commonwealth v. Clark, 14 Gray, 373.

But we are of opinion that the defendant was wrongly allowed to give evidence which was not admissible under nis answer. The answer sets forth, in justification of the charge in the plaintiff’s declaration, a single attachment of the mortgaged goods on Doak’s writ against the plaintiff. It appeared in evidence that this writ directed an attachment to the amount of four hundred dollars only, but that the defendant attached to the amount of fifteen hundred dollars or more. And the defendant was permitted to give in evidence an execution sued out by Doak, and a return thereon which stated that the defendant had sold all the mortgaged, goods which he had attached, and, after satisfying said execution, held in his hands more than a thousand dollars to be applied to the satisfaction of other attachments. This might have been a perfect defence to the action, if it could legally have been given in evidence. But as the answer gave to the plaintiff no notice of such a defence, the evidence was inadmissible, and the plaintiff is entitled to a new trial. If, on such trial, the defendant shall obtain leave to amend his answer, he will succeed in his defence, on proving that he attached the mortgaged goods on several writs, and sold the whole of them on executions obtained by Hunt’s creditors, against whom the mortgage was fraudulent and void, and applied the whole proceeds of the sale towards satisfaction of such executions.

The judge at the trial seems to have held that the plaintiff could not recover in this action, — which is trover, except in name and form of declaration, — even if the defendant were answerable to him for an excessive attachment. On this question we express no opinion. New trial granted.