A letting to service for 20 years, when the slave was af the age of 25, &c.,
is a sale and an evasion of the act. Fish v. Fisher, 480.
Vide Jackson ex dem. Staats v. Carey, 518; and vol. 2,
See CHANCERY. JUDGMENT. STATUTE.
The maker of a note was discharged as an insolvent, afterwards the indorser
was obliged to pay the note. The payment being subsequent to the dis-
charge, held, that the maker was liable to the indorser.-Vide Strange ads
Light, 543. Frost v Carter, 449. See vol. 1, p. 73.
1. Where there is a recovery against two, and one is surety merely, and the
plaintiff agrees that the surety shall have the benefit of the judgment as
against the other, he is entitled to the lien in equity.
Waddington v. Vredenburgh, 495, 496.
See vol. 2, p. 227, and p. 231, et seq., n. (a.)
2. In an action of debt on a bond, against the surety for two guardians, ap-
pointed by the court of chancery, that they should faithfully execute the
trusts respectively reposed in them, according to the terms of the order in
chancery appointing them, and render a true and faithful account thereof
when required.
Where one of the guardians died, it was held, that the trusts survived, and
that the surety was responsible for the acts of the surviving guardian; the
bond being co-extensive with the trusts. The People v. Byron, 53.
Cases and authorities, 60, 60-2, n. (a.)
Vide Whitaker v. Cone, 478; Doe v. Woodworth, 406.
See ACT TO LAY A DUTY ON STRONG LIQUORS.
I. By the Curtesy.
II. At Will.
1. A. a feme covert died seised of lands, in June, 1795, leaving a husband and
two sons and three daughters. The husband continued seised, as tenant
by the curtesy, until his death, in 1798. B., the eldest son, died abroad,
in 1784, an infant, intestate, and without issue. C., the other son, on the
death of his father, entered as heir to his mother. It was held, that the
descent was suspended, during the tenancy by the curtesy, and that A.
being last seised, was the stock of descent; and as she died before the sta-
tute of descents, C., the second son, took the inheritance, as sole heir to
his mother.
Jackson ex dem. Gomez, v. Hendricks; same, ex dem. same, v. Marmet and
Hendricks, 214.
Cases and authorities, 215, n. (a.) and (b)
2. No notice to quit is necessary in the case of a tenant strictly at will.
Jackson ex dem. Van Allen v. Rogers, 428. See vol. 1, p. 23.
A being indebted to B., by a promissory note, for $1,167, it was agreed in
writing between them, that A. should deliver to B. as much coal at ten
dollars per chaldron, as would amount to the sum due on the note, the coal
to be of the like quality with that purchased by A. of B. out of a certain
ship. No time or place were fixed for the delivery. A. having in his coal
yard a large quantity of coal, and sufficient of the quality mentioned,
though consisting of different kinds, immediately afterwards, and at diffe-
rent times, tendered to B. the coal, in satisfaction of the note, and B. made
VOL. III.
104
no objection to the place or mode of delivery, but said, at one time, he would
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 delivery
of the coal was valid, and that the tender on the part of A. was equivalent
to a performance, so as to bar the plaintiffs' action, and might be pleaded
by way of accord and satisfaction.
An accord, in order to be an effectual plea in bar, must be executed and sa-
tisfied with a recompense in fact, or with an action, or other remedy to
execute it and recover a recompense. Per Thompson, J., the other judges
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 commonly 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.
Radcliff, J., thought that the defendant ought, in strictness, to have separa-
ted 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.
Coit and Woolsey v. Houston, 243. S. C. 559.
See BILLS OF EXCHANGE. STATUTE.
1. Presumption of from Possession-Alienism-Dis-
ability.
II. Buying and Selling precluded.
1. Presumption of from Possession—Alienism-Dis-
1. A tract of land was granted, by letters patent, to A. B. in 1735, which
was surveyed and laid out into lots. In 1736, B. executed leases for seve-
ral lots to different persons, for lives, reserving rent, in which he asserted
his claim to the whole tract; and exercised various acts of ownership, until
his death, in 1752, and his heirs also gave leases of some of the lots, in
1767, and his title and that of his heirs, continued to be acknowledged by
the tenants, and remained undisputed, until after the year 1783. In an ac-
tion of ejectment brought by the heirs of B. against C., who had been in
possession since 1772, it was held that a grant from the original patentees
to B. was to be presumed; that entry, by him, into part with a claim to the
whole, was to be considered as an entry into the whole; and that the entry
of C. was in subordination to the title of B.
Patents and grants are in a variety of cases to be presumed even within the
time of legal memory for the sake of quieting an ancient possession. Per
Kent, J.
The American revolation worked no forfeiture of previously vested rights in
lands. Where a British subject died seised of lands in this state, in 1752,
leaving daughters in England, who married British subjects, and neither,
they, nor their wives, were American citizens; it was held that the hus-
bands of the heiresses might be joined in a demise with their wives, in or-
der to maintain an action of ejectment; and that even if the marriages
were subsequent to the American revolution, such marriages with aliens
would not impair the rights of the wives, nor prevent the full employment
of the property, according to the laws of the marriage state; especially
after the provision contained in the ninth article of the treaty of amity and
commerce with Great Britain, of the ninth November, 1794.
The court will not intend a disability. It lays with the party interested to
show it. Per Kent, J.
Though in case of a purchase, the law will recognize the title of an alien in
lands, until office found; yet in case of a descent, the law takes no notice
of an alien heir, on whom, therefore, the inheritance is not cast. But
where the title of land in this state was acquired by a British subject, prior
to the American revolution, it seems, that the right of such British subject
to transmit the same, by descent, to an heir, in esse, at the time of the re-
volution, continued unaltered and unimpaired; the case of a revolution or
division of an empire, being an exception to the general rule of law on this
subject. The objeclion of alienism is not to be favored.
Jackson ex dem. Gansevoort v. Lunn, 109, 539.
II. Buying and Selling precluded.
2. A note for the purchase of Susquehanna lands, under the Connecticut
title, received by the plaintiff with notice of the consideration held illegal,
in the hands of such plaintiff according to the case of Dole ads. Wood-
worth, decided in the court of errors in March, 1800.
Whitaker v. Cone, 478. See vol. 1, p. 58, 60, n (b.)
In trespass, probable as well as actual damages may be recovered, but if at-
tended with an ouster, there must be regress or re-entry, otherwise dama-
ges for the first entry only can be recovered.
Verdict set aside, but the court said if the plaintiff would accept nominal dam-
ages only, they would give him judgment.
Case v. Shepherd, 476. See vol. 2, p.
TROVER-CONVERSION EVIDENCE OF.
In trover. Goods in the hands of a master of a ship are liable to be detained
for freight; but if he refuse to deliver them on a ground wholly different,
without demanding the freight, it is evidence of a conversion.
Judah v. Kemp, 535. See vol. 2, p. 411.
1. That the purchase of an agent for the plaintiff, and a deed to him creates
a resulting trust for the plaintiff, not within the statute of frauds, and that
the possession of the defendant is not to be deemed adverse to the purchaser
without an actual disseisin or ouster.
Jackson, ex dem. Kanes v. Sternbergh, 440. See vol. 1, p. 153.
2. In an action of debt on a bond, against the surety for two guardians, ap-
pointed by the court of chancery, that they should faithfully execute the
trusts respectively reposed in them, according to the terms of the order in
chancery appointing them, and render a true and faithful account thereof
when required.
Where one of the guardians died, it was held, that the trusts survived, and
that the surety was responsible for the acts of the surviving guardian; the
bond being co-extensive with the trusts.
A guardian appointed by the court of chancery has a vested interest in the
estate of his ward; he may bring actions relative thereto, and make avowry
in his own name, and may also make leases during the minority of the in-
fant; he has in all respects the dominion, pro tempore, of the infant's estate.
Per Radcliff, J. and Kent, J.
The trust of such a guardian likened to that of an administrator. Per Rad-
cliff, J. and Kent, J. The People v. Byron, 53. See 531, 574.
Cases and authorities, 60, n. (a.)
The trustees sold all the right of the company in lands, to part of which the
title failed; held, that they are not liable to refund the consideration money;
caveat emptor. Murray v. The Trustees of the Ringwood Iron Co. 507.
An action for use and occupation is founded on the privity of contract, and
is not local.
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