
    Close against Miller.
    
      ALBANY,
    
    Jan. 1813.
    In an action sory note,"for the defendant tilatinconside’ ration that the jn-omised and amTdelivevto him a certain execute and a bill of sale, fendant6 pro-theedpiaintiF 2oo dollars in doiiarsfon the thmeafter6" and the decordingly.paid the plaintiff 200 dollars, and gave to him a promissory note for 100 dollars, which is the same note on which, fctc.; but that the plaintiff, though he delivered the vessel, did not execute a bill of sale, &c. whereby the defendant could not obtain a license, or lawfully sail or use the vessel, &c. By reason whereof (he consideration of the note had failed, See.
    On demurrer, it was held that the plea was bad; and that the promises were mutual^ and the one being in consideration of the other, the plaintiff was entitled to recover on the note, without showing a performance 'of the promise on his part*
    THIS was an action of assumpsit, on a promissory note, dated the 14th May, 1810, by which the defendant promised to pay the plaintiff, on or before the 1st October next, 100 dollars,
    The defendant pleaded that on the 14th May, 1810, at, &c. in consideration that the plaintiff had, then and there, promised and agreed to sell and deliver to him, a certain sloop or vessel, &c. which the plaintiff, then and there, falsely and fraudulently declared an(j affirmed to be the sole and exclusive property of the plaintiff; and in consideration that the plaintiff had, then and there, pro-raised to execute and deliver to the defendant a good and suffic’ent bill °f sale, &c. of the vessel, he, the defendant, promised to Pa^ *° *he plaintiff 300 dollars, to wit, 200 dollars in cash, and 100 dollars on the 1st October next thereafter; and that the defendant, pursuant to such promise and agreement, paid to the plaintiffsum °f 200 dollars, and made and delivered to him a, note for 100 dollars, payable, &c. which is the same note mentioned in the plaintiff’s declaration; that the plaintiff sold and delivered to ’ the defendant the sloop, but did not execute and deliver a bill of sale, &c. transferring the sole property in the said sloop to the defendant; that the plaintiff' was not the sole owner of the said sloop, &c. but one Close was a joint owner with him, &t. and the said sloop was registered in their joint names, &c. by reason whereof the defendant had not been able to obtain a license, &c. for the said sloop, and was prevented from sailing and using her, Sec. Whereby the consideration of the said note had failed, &c. See.
    To this plea the plaintiff demurred, and the defendant joined in demurrer: and the same was submitted to the court without argument.
   Per Curiam.

The plea discloses a sufficient consideration for the note, by stating that it was given in consideration of a promise by the plaintiff to sell, See. This was a case of mutual promises, where the one is a consideration for the other, and a performance of the plaintiff’s promise need not be averred and shown, to enti- / tie him to recover. The cases of Martindale v. Fisher, (1 Wils. 88. and of Nichols v. Rainbred, (Hob. 88.) are in point. If the plaintiff has failed in the performance of his promise, the defendant has a remedy by a suit upon that promise; but it would be altogether unprecedented and unfit to enter, in this suit, into .an examination and trial of the plaintiff’s default, as to his undertaking, so long as the performance of one promise was not made a condition of the performance of the other. This is not a case of a set-off.

Judgment for the plaintiff.  