III. Liability of Trustee vendors.
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 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: 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 negro 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 CONTRACT. SALE AT AUCTION. CONCERNING.
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 terms 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. (b.) 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. (b.) 156, n. (c.) and (d.)
II. Of Promissory Notes purchased after suit commenced, or Assignment.
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.) 156, 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 insolvent, 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. Bloodgood, 428. See vol. 1, p. 51.
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.
II. Bond-to remain a Faithful Prisoner Against es-
III. Bond for Ease and Favor.
IV. Deed of.
V. Sale by.
VI. Voluntary escape.
1. What is.
2. Effect of.
1. A sheriff is not liable for a contempt in not acting on process delivered to
his deputy, unless it appear to have come to his hands.
The People v. Waters, 433. See vol. 1, p. 137.
II. Bond—to remain a faithful prisoner—Against escapes.
2. A bond at common law, conditioned that a prisoner should remain a true and faithful prisoner in the jail, is valid and not a bond for ease and favor within the statute 23d H. 6, c. 10.
But a bond against escapes, which implies a permission to escape on being in- demnified, has been held void, &c.
Dole v. Bull & Porter, 498. See vol. 2, p. 239.
3. The act, (sess. 24, c. 91,) as to jail liberties, is imperative on the sheriff, who is bound to grant the liberties to the prisoner on his tendering a suffi- cient bond; but as this bond is intended only for the sheriff's indemnity, he may waive it, and grant the liberties, without taking the bond; and he will not therefore, be liable for an escape.
Holmes v. Lansing, 73. See 446, 535.
III. Bond for Ease and Favor.
See Supra, Dole v. Bull & Porter. ESCAPE.
4. A sheriff's deed conveying certain lands by metes and bounds, together with "all ways, paths, easements," &c, does not include lands held by a dis- tinct title, though adjoining the premises, and formerly purchased and used as a road for the same, when it is not included within the description of the premises.
A subsequent deed from the sheriff will not help if such road was not known at the time of the sale, and understood to be part of the premises sold. Jackson, ex dem. Jones v. Striker, 450. See vol 1, p. 284.
5. On a sheriff's sale by an alias fi. fa., held :
1st. That the alias clause may be rejected, no previous fi. fa. having issued. 2d. That the sheriff's return on the writ is not material to the purchaser's title.
3d. 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.
6. In an action against a sheriff for an escape, if it be averred, or found on the record. that the sheriff permitted the prisoner to escape, it is equivalent to a finding of a voluntary escape. Holmes v. Lansing, 73. See 446, 535.
See JAIL LIBERTIES. ESCAPE.
7. A sheriff after suffering a voluntary escape of a prisoner on execution, can never retake him nor lawfully detain him, although he voluntarily returns and submits to the process. Radcliff, J. contra.
Lansing v. Fleet, 474. See vol. 2, p. 3.
I. Words spoken of one in office.
2. Must be spoken of the person in his official capacity. II. Words otherwise actionable explained by reference to known transaction.
I. Words spoken of one in office.
1. Words spoken of the plaintiff as sheriff, importing malconduct in his office, are actionable. Dole v. Van Rensselaer, 461. See vol. 1, p. 330.
2. Must be spoken of the person in his official capacity.
2. These words in slander "Squire Oakley is a damned rogue," held not to be spoken of the plaintiff in his character of a justice, and therefore not actionable. Oakley v. Farrington, 434. See vol. 1, p. 129.
II. Words otherwise actionable explained by reference to
Words otherwise actionable, explained at the time by referring to a known and particular transaction, are to be construed accordingly, and were held not actionable.
The verdict being found against the charge of the court on this point, was considered as a verdict against law, and the costs therefore to abide the event of the suit. Dole v. Rensselaer, 458. See vol. 1, p. 279.
SLAVES, ACT CONCERNING.
1. An indenture that a slave shall serve another until both parties agree to vacate the same, is equivalent to a sale.
Executors and persons acting in auder droit, may sell a slave, notwithstand- ing the act of the 22d February, 1788. Sable v. Hitchcock, 479. See vol. 2, p. 78
2. A slave escaping from another state into this, and afterwards sold here by the master, is equivalent to a "bringing in," in the first instance, and within the act of 22d February, 1788.
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