
    Parsons, assignee of Freligh, an insolvent debtor, against the administrators of Gaylord.
    NEW-YORK,
    Nov. 1808.
    C. gave his bond to B. for a certain sum of money, ora the payment of whiehB.agreed to convey a. certain quantity of land to C. B.delivered the bond to F. with an authority to receive the money; and C. with G. as his surety, gave a joint and several note to F. for the amount of the bond, which was given up to C. In an action on the note against G. it was held, that he could not set up as a defence, an agreementbyF. that in case B. should refuse to consider the note as a payment on the bond, it should be returned, nor a want of consideration, by reason of the failure of B. to convey, the land to G.
    THIS was an action of assumpsit. The cause was tried at the Herkimer circuit, the 3d October, 1807, before Mr. Justice Van Ness.
    
    The declaration, was on a joint and several promissory note, dated the 18th December, 1798, for 162 dollars and 63 cents, made by the intestate, Gaylord, and one Owen Carmer, payable to Michael Freligh, or order, on the 1st November, 1799.
    It appeared from the evidence, at the trial, that Carmer had given his bond to one Bartlett, for the consideration money agreed to be paid, on the purchase of a parcel of land, and on the payment of which, the land was to be conveyed to him by Bartlett. Bartlett, being indebted to Freligh by bond, in a larger amount, delivered to him the bond of Carmer, with a written authority to receive payment, and an order on Car?ner to pay the amount to Freligh*The intestate joined with Carmer in the note in question, and the amount due to Bartlett, was indorsed by Freligh on the bond of Carmer, and the bond itself delivered up to Carmer.
    
    Some of the witnesses testified, that at the time the note was given, Carmer and the intestate expressed an apprehension that Bartlett would not consider the note as a payment on the bond against Carmer, and that Freligh said, if Bartlett was dissatisfied and should refuse to consider the note as a payment on the bond, that he, Freligh, would then give up the note to the intestate and Carmer, and that on this assurance from Freligh, they signed the note. Bartlett afterwards declared his dissatisfaction, and refused to consider the note as payment ; and went with the intestate and Carmer, and demanded the note of Freligh, who refused to deliver it up, saying that the intestate and Carmer should not be hurt by it. This testimony, however, was contradicted by other witnesses,
    
      ■ It appeared also, that Bartlett had become bankrupt, and could give no title for the land to Carmer. The judge charged the jury, that if the latter witnesses were to be believed, the plaintiff was entitled to recover, and, the jury accordingly found a verdict for the plaintiff.
    motion vyas made jn behalf of the defendant to set aside the verdict, and for a new trial.
    1. Because the verdict was against evidence.
    2. For the misdirection of the judge.
    
      Cady, for the plaintiff.
    
      Hildreth, (Attorney-General,) contra.
   Spencer, J.

delivered the opinion of the court. The defendant insists, that the consideration of the note on which the present suit is brought, has failed, because Bartlett, with whom Carmer, one of the makers of the note, had contracted for the purchase of a piece of land, refused to consider the note as a payment on the bond given for the land, and had become a bankrupt, and wholly unable to convey a title for the land pursuant to his contract.

There is a contrariety of evidence, as to what passed when the note was given; and the jury, without deciding on the credit of the witnesses, have given a verdict under the direction of the judge, who considered the evidence of an agreement to give up the note, and of Bartletfs refusal to admit it in payment, as irrelevant. It is necessary, therefore, to inquire merely whether the agreement set up by the defendant can operate as a defence in this action. It is clear that the giving the note by Carmer and his taking possession of the bond, under the authority given by Bartlett to Freligh, amounted in'lav/, to a payment, and any dissent of Bartlett afterwards, must be unavailing. The agreement that Bartlett should allow the note as a payment, was in effect performed, since he could not legally disallow it; and his subsequent dissent, after he was thus concluded by the acts of his agent, was vain and idle. Carmer had also in his possession the fullest evidence to show that he had paid, as between him and Bartlett, what he was bound by his bond to pay.

The subsequent bankruptcy of Bartlett, cannot affect or vary the case. If Carmer chose to part with his money, before he acquired a title for the land, it was a want caution on his part, for which he must blame himself.

The Court are, therefore, of opinion, that the direction of the judge was fcorrect, and that the plaintiff is entitled to judgment.

Judgment for the plaintiff.  