Legal Opinion

Downer v. Sinclair

Supreme Court of Vermont

Decided February 15, 1843PublishedCited by 1 opinion

This was an action of debt on judgment. The defendant pleaded two pleas in bar. The first was a plea of payment, which was traversed, and issue joined to the court.

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This was an action of debt on judgment. The defendant pleaded two pleas in bar. The first was a plea of payment, which was traversed, and issue joined to the court. In the second plea, the defendant alleged that, after the rendition of the judgment declared on, to wit, on the 1st of January, 1839, in consideration that defendants would make and deliver at the shop of said Nathaniel, jr., winnowing-mills, to the amount, and of the value of, said judgment, one half in the course of the then current winter, and the other half in the course of the winter next following, the plaintiff promised…

1Opinion of the Court

The opinion of the court was delivered by

Hebard J.

The facts detailed do not amount to a payment. There is a difference between making a payment of *499a subsisting debt, and doing that, which, on suit being brought, amounts to a defence. A tender of money is not payment, unless it is received. And the same is true of specific arti- . .... cíes. The idea of a payment carries along with it the supposition that the money, or other thing, was delivered by the payor to the payee, and by him received. Controversies have arisen in relation to the construction that should be put upon the aet of receiving…

2Cases cited1 opinion

  1. Mattison v. WescottSupreme Court of Vermont · 1841

3Cited by1 opinion

  1. Warren v. StateSupreme Court of Arkansas · 1857

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