
    
      SMITH vs. ROBERTS & AL.
    
    If the buyer is disturbed in his possession by the suit of a third person, he may refuse payment, until the vendor gives security.
    Appeal from the court of the sixth district.
   Mathews, J.

delivered the opinion of the court. This action is founded on two notes of hand, by which the defendants promised to pay to W. Vaughn, administrator of Seth Stafford, deceased, $1450. The notes are not drawn in negotiable form, but passed to the plaintiff by endorsement, in good faith, who holds them, subject to all legal and equitable objections to payment, which might be pleaded by the promisors, against the original payee. Payment is resisted on the ground of no consideration, or failure thereof, to support the promise. It appears, that the notes in question were given as the price of certain slaves, bought by the defendant Roberts, at a sale of the estate of the intestate Stafford; and that said slaves are now claimed from him, by virtue of a title alleged to be in third persons, who have actually commenced suit on their claim. The district court gave judgment for the defendants, from which the plaintiff appealed.

West'n District.

Sept. 1822.

In the course of the trial below, several bills of exceptions were taken to the introduction of evidence which related to the title of the slaves in question; but, as that is a matter which can better be settled in a decision of the suit actually commenced for what purpose, it is deemed unnecessary now to consider those bills of exception.

We are clearly of opinion, that the facts disclosed in evidence, are sufficient to authorize the defendants to withhold payment of their notes, unless they be amply secured against the probability of loss which they may suffer by eviction of the slaves, who constitute the consideration of their promise. But it is not just, that they should retain both the thing and the price.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled. And it is further ordered, adjudged and decreed, that the plaintiff do recover from the defendants the sum of $450, with legal interest from the judicial demand ; and that execution shall be stayed, until said plaintiff give good and sufficient security, to the satisfaction of the district judge of the judicial district, to save the defendants harmless from the effects of any judgment, by which they may be deprived of their title and possession of the slaves mentioned in these proceedings, and which appear to be the consideration of the notes on which this action is founded ; and that, in case of eviction as aforesaid, they will refund the price of said slaves, with interest and damages. And it is further ordered, that the appellees pay the costs of this appeal.

Bullard & Thomas for the plaintiff, Wilson for the defendants.  