
    Gary and Gary against Hull.
    NEW YORK,
    October, 1814.
    Gr. agreed wStii H. to accept payment for a judgment against II. m tanners bark, and H. accordingly deliverer! to G« six loads of bark, but not agri-ineas to the price, Gr„ immediately!^ sued an execution on the judgment a-g/instH., who then Drought an action fo*' much bark v>ld and delivered,• end it was held that hewasen? lied to recover; th-e rig fit of applying the hark Sn paym mtofthe judgment having been waived ny thn act of 0 , and the agrees?zv. rescinded
    IN ERROR, on certiorari, from a justice’s court. Hull brought an action against Joseph and John Gary, before the jus tice, for a quantity of tanner’s bark sold and delivered. Plea, the general issue.
    The defendants below had sold a wagon to Hull and his brother for 45 dollars, to be paid for in bark. Five dollars only were paid on that contract; and when the time had expired, Hull confessed two judgments before a justice for the balance, being 40 dollars. It was then agreed that Hull might yet make payment in bark, to be applied on the judgments.
    The plaintiff accordingly delivered six loads of bark to the d = fendants below; but the parties not agreeing as to the price, the defendants issued executions for the whole amount of their judgments, which executions were in the constable’s hands at the commencement of this suit.
    The justice gave judgment for the plaintiff below, for the value of the bark so delivered.
   Per Curiam.

This is a clear case for the plaintiff below. The defendants had waived the benefit of applying the bark on iheir judgment against Hull by issuing their executions tor the whole amount of those judgments.

The agreement, therefore, for making such application, appears to have been rescinded by mutual consent; and there remained no objection to fluids claim for the bark.

The judgment mast be affirmed.

Judgment affirmed»  