The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-29
Supreme Court-special Term.

III.
unisfra,or Of Ccin MtcheH--An action commenced
in the Superior Court in September 1875 against the
defendant administrator on three notes made by the
intestae the 9th Of April 1897 The defendant put
in variety of pleas. Among others the statute of
limitations set off in favor Of the ntestatc and that
the plaintiffs who were described trustees had ceased
to be trustees An issue of fact Joined to the set
off and the other pleas ended in dcmurrcrs which
found in favor of the plaintiffs reference ordered
by consent in February 1916 to the issue of fact and
ported in that year favor of the plaintiffs for the
OF S16S43 49, which judgment entered in January
term of 1S47 The defendant appealed to the Supreme
Court and from there to tho Court of Appeals and the
judgment affirmed in both courts The defendant
says that after judgment given in favor of the
plaintiffs on the demurrers he first discovered that the
lands for the purchase Of which the notes given
sold by the plaintiffs and bought in by the company
49, and after that he consented to rerercncc and
the reference the amount which the lands brought the
resale credited to the defendant to reduce just
so much of the account against him Knowing the sale
he chose not to apply to the Superior Court leave
put in plea of that resale to seek any relief in that
Court the account but to allow Judgment to be en-
tered against him in that Court then try his chance
in the Supreme Court and Court of Appeals to
that judgment He asks to open ali the pesdings
and allow him to plead 1t is too late and he has
delayed too long in his application to be allowed
traordinary favor From the facts stated 1t would
most likely that the defendant concluded that the
facts which he would introduce would constitute
defence, and therefore would not trust his defence to
of sale that If he failed pay any Of the notes. the
plaintiff should be at liberty on giving thirty days
notice IN public gazette in Apaachicola to sell the lots
bought by him. at his risk for the benefit of the company
OF which the plaintiffs trustees. The company
not to give leeds for tho lands until the notes should
be paid In 1872 the notes not being paid the
sold the lots pursuant to the terms Of The arrange
ment was in the ture of for purchase money
with power OF sale and liability in the mortgager for
any deficiency. Under such arrangement the sale
would be regular and the person contracting to buy
would be responsible for the face of his entitled
to an allowance for what the lands should produce the
resale And the referee settled the amount on that
principle If the principle erroneous the defendant
should not have taken advantage of IL in the
settled by the referee and the sale released the
PENDANTS interstate from liability tho notes. instead of
emitting him only to deduction Of the proceeds Of the
resale that point should have been presented al that
time The including of the proceeds Of resale In the
allowance to the defendant and not making the resale
bar to the action adjudication in effect that the
resale was not bar to the action but for mtga
tion Of damages only Such adjudication seems also to
with ten dollars costs.