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III. Duties of RefereesAdjournment.
3. It is unreasonable for referees not to grant a delay of one day for further
proof, and the report therefore set aside.

Forbes v. Frary, 492. See vol. 2, p. 224.

IV. Powers of Referees.

4. There was a rule of reference by consent and special, as to the time of

reporting. Report set aside because made after the time agreed, and,
Because two of the referees acted only, without notifying the third.

Brower v. Kingsley, 460. See vol. 1, p. 324.

V. Setting aside Report.

5. A report of referees set aside, on the ground of intricacy and difficulty in
the accounts, and that new lights may probably be afforded.

Allard v. Mouchon, 456. See vol. 1, p. 280.


This court has the same power over the proceedings of the recorder of New

York, while acting as commissioner, as when acting as recorder ; but they
will not exercise the power where the recorder has a discretion by the act,
and has acted definitely, as in granting a supersedeas under the act, as
to absconding debtors. The regular course is to bring up the proceedings
of the recorder, by certiorari, not by an order of this court.

Learned v. Duval, 141, 542.

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The American revolution 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.
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 ez dem. Gansevoort v. Lunn, 109, 539.



In dower. The demandant had always been a British subject and resided in

Ireland; her husband an American before the revolution; adjudged that
she may recover dower on all the lands whereof her husband was seised
before the 4th July, 1776, and no other.

Kelly v. Harrison, 476. See vol. 1, p. 29.


1. What constitutes.
II. Conditional-right to rescind.

III. Liability of Trustee vendors.

I. What constitutes.

1. 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
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 resusal, 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, ard to ascertain
that it corresponded with the quality contracted for: aud that the accord
was never in fact executed.

Coit and Woolsey v. Houston, 243, 559.

II. Conditional-right to rescind.
2. An agreement for the purchase of a vegro boy, with a privilege to the
purchaser to return him within a certain time, is valid.

Giles v. Bradley, 500. See vol. 2, p. 253.

III. Liability of Trustee Vendors.

3. 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
Murray v. Trustees of the Ringwood Iron Co., 507. See vol. 2, p. 278.



1. The land of A. was advertised for sale by the sheriff on an execution

against A., at the suit of B. C. who had purchased the land without
knowing of the judgment and execution, agreed with B. who attended the
sale, that if he would not bid against him he would pay B. the amount of
his execution, and give him his note for the further sum of 150 dollars, and

B. acceded to the terins and desisted from bidding.
In an action on the note against C., by the second endorsee, to whom it had

been negotiated, after it became due and with a knowledge of the circum-
stances, under which it was given, it was held that the consideration of the
note might be inquired into; and that the consideration being unconscien-
tious, and against public policy, the note was void.

Jones v. Caswell, 29, 529.
Cases and authorities, 33, n. (6.) 33 n. (c.) 34 n. (d.)


Defendant was indebted to plaintiff on single bill. Defendant gave to others

a bond, and confessed judgment thereon, for a sum including the plaintiff's
debt, and in trust for him. The plaintiff affirmed the trust by suing out
execution on the judgment. Held to be a bar to his recovery on the single
bill. Seaman v. Haskins, 487. See vol. 2, p. 195.






I. Of the right generally.
II. Of Promissory Notes Purchased after suit com-

menced, or Assignment.
III. Plea and Notice of

I. Of the right generally.
1. 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.
A debt or demand, to be set off under the statute, must be an existing debt

or demand, at the time of the commencement of the plaintiff's suit.

Fictio juris is never allowed to work an injury or prejudice to any party.

Per Radcliff, J Carpenter v. Butterfield, 144.
Cases and authorities, 150, n. (6.) 156, n. (c.) and (d.)

II. Of Promissory Notes purchased after suit commenced,

or Assignment.

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2. Where a defendant, after a writ issued against him, of which he had no-

tice and before he was actually arrested, purchased a promissory note,
made by the plaintiff, which was endorsed to him for the avowed purpose
of setting it off against the plaintiff's demand; it was held the set-off was
not admissible. Carpenter v. Butterfield, 144, 547.
Cases and authorities, 150, n. (b.) 151, n. (c.) and (d.)
3. A note purchased at an under value by the debtor of an insolvent, after

notice of the insolvency, not allowed to be set off in a suit brought in the

name of the insolveat, for the benefit of his assignees.
Circumstances to excite inquiry, sufficient notice, and the interest of the as-
signees protected in this suit in the name of the insolvent.

Johnston v. Blood good, 428. See vol. 1, p. 51.

III. Plea and Notice of.

4. Non assumpsit as to all except forty cents, and payment of the forty cents

with notice of set off of much larger sums; held-
1. That the defendant is not permitted, in any case, to set off more than the

sum pleaded ; and
2. That the plaintiff suing as endorsee of a promissory note against the mak-

er, and the payment set up being made to the payee of the note, the endor-
see would not be affected by it.

Prior v. Jacocks, 439. See vol. 1, p. 169.


I. Attachment against.
II. Bond-to remain a Faithful Prisoner --Against es-

III. Bond for Ease and Favor.
IV. Deed of

V. Sule by.
VI. Voluntary escape.

1. What is.
2. Effect of

1. Attachment against.
1. A sheriff is not liable for a contempl in not acting on process delivered to
his deputy, unless it appear to bave come to his hands.

The People v. Waters, 433. See vol. 1, p. 137.

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