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Russell v. Minor. without any condition whatever. It is true, it was delivered under the contract made with the manufacturers ; yet, by that contract, the defendant was to give his note for it at six months. By the contract, the parties evidently contemplated that the whole paper would be delivered at the same time, and the note thereupon executed by the defendant. The paper having been delivered in parcels, the defendant had no right to require, that the first parcel should be considered as delivered, absolutely, until the whole should be ready for delivery, and he be prepared to perform the contract on bis part. Beach, one of the Saugerties company, attended at the delivery of the paper in question for the plaintiff, and before it was all delivered, asked the defendant for his note for the parcel, to which he answered, " that he would give his note for the whole when the remainder was brought, and the parcel now delivered could remain till then." I think this conversation between Beach and the defendant, shows that the owner did not intend to part with his right and control over the property by delivery until the note was given; and such is the fair construction of the language used. The desendant said in substance, although you have put this property into my store, under a contract for the delivery of a larger quantity, you nced not be considered as parting with the ownership, until the remainder shall arrive, and I be ready to perform the contract, by giving my note for the whole; but the parcel now delivered may remain here till then, your property.

The property remained in the plaintiff tunil the delivery of the second parcel, subject to become the absolute property of the defendant, upon his giving his note, according to the terms of his contract. It was, then a conditional delivery; the condition of which never having been performed, the right to control the property was in the plaintiff, at the time the defendant refused his note on the delivery of the last lot. There was nothing in the conduct of the parties on the delivery of the last lot, which showed that the vendor intended to part with the title to the property, and trust to the good faith of the defendant to perform his contract. On the contrary, while the paper was in the act of being

Russell v. Minor. delivered. Beach demanded the note for the whole, of the defendant, who endeavored to put him off till morning, under pretence that he was then engaged, and could not attend to it, but evidently with a view to have the delivery completed, and the vendor trust to his promise to give the note in the morning. He then endeavored to persuade Beach to go away and call again in fifteen minutes, which he declined, and urged an immediate settlement. As soon as the paper was all put into the store, and while Beach was urging the defendant to give his note, he declined upon pretence of having notes or bills against the Saugerties company: I cannot see any thing in the conduct of Beach, who acted as the agent for the vendor, evincing an intention to part with his control over the property until the note was given. The plaintiff, therefore, had a right to an action for the last delivered parcel, upon the ground that he had never parted with the possession, except upon condition that the note should be given at the same time. If he could maintain an action for the last parcel, there can be no good reason why he should not be able to recover for the first also. Its conditional delivery was to become absolute only on the giving the note for the whole.

It was suggested on the argument by the chancellor, that the delivery of both parcels under the contract was an entire transaction, and that the plaintiff could not split up his cause of action and make two suits of it. This suggestion is correct; and if the defendant had taken advantage of the objection in the proper manner, he might have availed himself of it in his desence. But to make it available, he should have pleaded the recovery for the other parcel in bar of the present action. He cannot, under the general issue, avail himself of this defence.

Some doubts were suggested in the opinion of the court below, in relation to sustaining this peculiar form of action, whatever might have been the plaintiff's right to recover the value of the property. From an examination of the provisions of the revised statutes, relative to the action of replevin, I think this action well brought. The action lies Russell v. Minor. for a wrongful detention, as well as for a wrongful taking. 2 C. S. 522.

The judge erred in directing the plaintiff to be nonsuited. I am therefore, of opinion that the judgment below should be reversed, and that a venire de novo should be awarded.

The CHANCELLOR delivered an opinion for an affirmance of the judgment of the supreme court, but the reporter not having received a copy of the opinion, is not able to give it to the profession.

Upon the question being put, Shall this judgment be reversed ? the members of the court divided as follows:

In the affirmative : The President of the Senate, (Hon. John Tracy,) and Senators Dickinson, DOWNING, EDWARDS, Hull, HUNTER, LACY, LAWYER, E. P. Livingston, H. A. Livingston, Loomis, SKINNER, SPRAKER, Van Dyck, WAGER-15.

In the negative : The CHANCELLOR, and Senators BECKWITH, LEE, MAYNARD, VEPLANCK, WILLES—6.

Whereupon the judgment of the supreme court was REVERSED, and a venire de novo directed to be issued. *

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AN

INDEX

THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

AMENDMENTS.

178

ACCORD AND SATISFACTION. 1. On leave to amend a scire facias the

plaintiffs are not at liberty to add now
See PrincipAL AND AGENT, 3.

parties, the necessity for whose join.
der existed previous to the issuing of

the writ; especially will they not be
ACTIONS IN GENERAL.

allowed to do so where as against such

new parties the statute of limitations
1. Where an accountable receipt is giv. has attached, Willink v. Renwick, 608

en-by which the receiptor agrees to
pay to A the amount of a note to be 2. Where a favor is granted to a party
collected by him-part in cash and on condition : as where leave is given
part in goods, no demand of the goods to amend on payment of costs, or the
is necessary, if the receiptor after re-i like, he must at his peril take notice
ceiving payment of the note insists of the order of the court without wait-
upon applying the money to a demanding to be served with a copy of the
owing to him by A. and another person. rule.

id
Walsh v. Ostrander,

See EXECUTION,5. Pleas & PLEADINGS,2
2. Although the receiptor in such case

had a joint demand against A. and ARBITRATION AND AWARD.
such third person, it was held that he
was not entitled in an action by A. 1 In a submission between an insurance
against him to set off the money col. company and a party assured, in res-
lected on the note.

id pect to a loss, and an award of a sum

of money to the assured, the arbitra-
3. Bail in error may be sued in the court tors will be deemed not lo hude erceed.

in which the writ of error was return. ed their authority in directing a trans.
able; the action is not confined to the fer by the assured of bis claims against
.court in which the judgment was ren another company for a loss, as the
dered. Gallagher v. Flannelly, 612 legal intendment is, that there was a

double insurance. Nichols y. The

Rensselaer County Mutual Ins. Co. 125
AFFIDAVIT OF MERITS.

2. Upon such an award, it is not neces-
See Practice, 17, 21, 22.

sary that the assured should aver an

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