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send and take them, and at another, that he was not ready to receive
them, and finally neglected to take them. In an action, afterwards brought
by B. against A., on the note, it was held that the agreement for the deliy-
ery of the coal was valid, and that the tender on the part of A. was equi.
valent to a performance, so as to bar the plaintiffs' action, and might be
pleaded by way of accord and satisfaction.

Coit 9. Woolsey v. Houston, 432.
3. It is a principle settled, that if a person is to acquire a right to a debt or duty

by previously doing some act, this right is as completely vested by an offer
to do it and a refusal, as if the act had been actually performed, or, in other
words, a tender and refusal is equivalent to a performance. Per Living.

ston, J., the other judges acc. Id.
4. Radcliff, J., thought that the defendant ought, in strictness, lo have sepa-

rated the quantity sold, in order to make a specific tender, and to ascertain
that it corresponded with the quality contracted for; and that the accord

was never in fact executed. Id.
5. See Radcliff's Mss. p. 559.

ACCOUNTS.

Case of stale demand, where statute of limitations not pleaded.

Ray and others v. Bogert, 608. See vol. 2, p. 432.

ACT FOR GIVING RELIEF IN CASES OF INSOL-

VENCY.

See DEBTORS.

ACT FOR THE RELIEF OF DEBTORS WITH RE-
SPECT TO THE IMPRISONMENT OF THEIR
PERSONS.

See DEBTORS.

ACT TO LAY A DUTY ON STRONG LIQUORS,
AND FOR REGULATING INNS AND TAVERNS.

1. The supervisor an essential member of the board of commissioners, and

he must convene them. Palmer qui tam v. Doney, 519.
2. Where a license expired on March 1st, and there is no meeting of the

board till 8th of April following, to grant now licenses, an inn-keeper may
until that time, act under the former license. Id.
See S. C. vol. 2, p. 346.

ACT CONCERNING SLAVES.

See SLAVES.

ACTION.

I. Assumpsit.

1. On Guaranty.

2. For money had and received.
11. Debt.

1. On voluntary payment.

Evidence in.
III. Covenant.

1. Where it will lie.

Damages.
IV. Commencement of-what.
V. Right of_not divested after commencement, except

by some act of the Plaintiff.

I. Assumpsit.

1. On Guaranty.
1. A guarantee for the payment of a sum, in the first instance, proposed to be

paid by others, is an absolute engagement, and on failure of the others at
the time, the defendant is liable.

Bank of New York v. Livingston, 524.
See S. C. vol. p. 409. Authorities, 410, n. (a.)

2. For money had and received.
2. A. subscribed 50 shares in the New York Insurance Company, at fifty dol.

Jars each, the amount to be paid in five instalments of ten dollars on each
share ; and by the articles of association, no transfer of any share could

be made, until all the instalments were paid in.
A., after paying the two first instalments, on the 22d of July, 1796, assigned

the shares, and all his interest therein, to B., who punctually paid the three
remaining instalments to the company, at the times at which they wero

respectively payable.
The company knew of the assignment to B., on the 20th of January, 1797,

and between that time and the 20th of January, 1798, three dividendo
had been declared on the stock or shares by the company, which amounted
to 525 dollars. The company held three notes of A. given for premiums
of insurance, one of which, dated the 3d of June, 1796, was for 1,001 dollare
and became due in December, 1796 ; and the others, dated in September,
1796, became due in March following ; and they applied the 525 dollars
due for the dividends, towards the payment of A.'s notes, after deducting
which sum, and the sum for return of premiums, there remained due to
the company, on the notes of A., 465 dollars; and, when B., on the 20th
of January, 1798, paid the last instalment, and demanded a transfer of the
shares to him ; the company refused to make the transfer, until the bal.
ance due from A., (who was then insolvent,) was paid to them. B. paid
the 465 dollars to the company, who thereupon made the transfer to him.

In an action for money had and received, &c. brought by B. against the

company, to recover back the 465 dollars, and also the dividends, after the
20th of January, 1797; it was held that the action would lie, and that the
plaintiff was entitled to recover the 465 dollars paid by him, but not the
dividends received by the defendants, prior to the 20th of January, 1798,
as the defendants had an equitable lien on that money, in their hands, to
pay the note of A., which was actually due to them, before they had no-
tice of the assignment to B.

Bates v. The New York Ins. Co., 238, 559.
Cases and authorities, 243, n. (a.)

II. Debt.

1. On Voluntary Payment.
3. A note was lost or mislaid, and A. the maker having paid the amount to B.

the holder, took his bond of indemnity against the note, &c., and after-
wards, A. having a demand against B. for money, B. refused to pay, with-
out first deducting the amount of the note, to which A. consented and
took the balance, and a receipt from B. for the amount of the note as due,
and afterwards brought an action against B. on his bond of indemnity. It
was held that the second payment being voluntary on the part of A. and
no sraud alleged on the part of B., no action could be maintained against

him on the bond. Bazen v. Roget, 87.
Cases and authorities on voluntary payments, 89, n. (a) to Bazen v. Rogci.

2. Evidence in.
4. A deliberate acknowledgment of a note being due ought to conclude the
party, unless strong evidence be offered to show a mistake.

Bazen v. Rogct, Rad. Mss. 536.
5. Upon plea of nil debet to debt on a judgment of a neighboring state.

Rush v. Cobbett, 500. S. C. vol. 2, p. 256.
Cases and authorities, 457, n. (u.)

III. Covenant.

1. When it will lie.
Executors of Van Rensselaer v. Executors of Platner, 475. S. C. vol. 2,

p. 17.

Devisces of Van Renssclaer v. Ex'rs of Platner, 475. S. C. vol. 2, p. 24.

2. Damages.
Ex'rs of Van Rensselaer v. Ex'rs of Platner, 475. S. C. vol. 2, p. 17.

IV. Commencement of-what.

6. The issuing of the writ in a cause is, for every material purpose, the com-

mencement of the suit. Carpenter v. Butterfield, 145.
Cases and authorities, 146, n. (a.)
7. Under the Code of Procedure of the State of New York, 116-1, 116–2. .

V. Right of, not divested after commencement, except by

some act of the Plaintiff.

8. Where a right of action is vested, and an action commenced, nothing can

deprive the plaintiff of his right to recover, except some act done by him-
self in relation to that right. Carpenter v. Butterfield, 145.

ADMINISTRATOR.

See EXECUTOR.

ADULTERY, EVIDENCE OF.

Confessions of the wife connected with other proof and not frandulently

made. Doe v. Roe, 424. S. C. vol. 1, p. 25. See also id. 26, n. (a.)

AFFIDAVIT.

I. On Motion.

1. For Commission.

a. May be made by a third person.

b. What it must contain.
2. To found motion for mandamus-what it should contain.
3. To change the Venue.

a. May be made by Defendant's Attorney.

b. What it must contain.
4. Supplementary Affidavit.
5. Counter Affidavit.

I. On Motion.

1. For Commission.

a. May be made by a third person.
Van Demar v. Van Zandt, 484. S. C. nom., Demar and Wife v. Van Zandt,
vol. 2, p. 69.

b. What it must contain.
Franklin v. United Ins. Co., 484, 504. S. C. vol. 2, p. 68, 285.

2. To found motion for mandamuswhat it should contain.
Matter of Gephard, 434. S. C. vol. 1, p. 134. See also vol. 2, p. 217–62,
63, § 47.

3. To change the Venue.

a. May be made by Defendant's Attorney.
Scott v. Gibbs, 472. S. C. vol. 2, p. 116.
Vol. III.

89

b. What it must contain.
Id. and Wheaton v. Slosson.

See Infra, 6.

4. Supplementary Affidavit.

Cannot be read in support of a motion.
Campbell v. Grover, 468. S. C. nom., Campbell v. Grover, vol. 2, p. 105.

5. Counter Affidavit.
a. It may be read without the copy having been served. Id.

b. On motion to charge the venue what it ought to contain.
Scott v. Gibbs, 472. S. C. vol. 2, p. 116.

AGENT.

1. The Contract of Agency.
II. Lien of Insurance Broker on Policy.
III. Ratification of acts of, by assent.
IV. Right of Retainer.
V. When personally liable.

Mistake, misapprehension, or negligence.

1. The Contract of Agency.

1. A. was at Trinidad in Cuba, where he received vessels and cargoes consigned

to him by B. and C. of New York, and in which A., B. and C. were jointly
interested. In April, 1800, A. purchased a prize vessel, and sent her with
a small cargo, on the 29th May, to the Havana. On the return of a ves-
sel from Trinidad to New York, which had been sent out by B. and C. to
A., B. was informed by the master, that A. had purchased a prize vessel
called the Chance, and that she was to come to New York with a cargo;
and B., without recei any information from A. himself, or any order
for the purpose, on the 16th June, caused the vessel and cargo to be insured
at and from Trinidad to New York, and paid the premium. The broker,
at the time he effected the policy, told the insurer, that the plaintiff did not
know whether the vessel and cargo had been purchased for A. or B. or C.,
and that he had no orders to have them insured ; but that A. had the funds
of B. and C., and they had just heard the vessel was coming to New York.
The policy was effected for account of A. or C. or B. and C., or any other

person, &c., in the usual form.
The vessel not having come to New York, B. afterwards brought an action

against the insurers, to recover back the premium, and, at the trial, A. who
had been previously released by B., was admitted as a witness, and testified
that the vessel and cargo were his sole property, and were purchased on his
own account, and that neither B. nor C. nor any other person, had any in.
terest in them; and that he sent her to the Havana, and though he wrote
lo B. and C. in May, he never informed them of the purchase, or ever

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