Debt upon a bond. Pleas,' — payment; set-off; accord and satisfaction. Held: and the balance in money : that the bond was not then delivered up, nor any money paid, the plaintiff not having the bond with him; but it was agreed, that the defendant should call at the plaintiff’s house, in a few days, execute a bill of sale for the boy, and receive the bond, and the balance of the money, in payment for him: that…
Decided 1835-12-05
Dahiel, Judge,
¶1
after stating the case, and the circumstances particularly relied upon by each party, proceeded : —It seems to us, that the Court should have left all these circumstances to the jury, for them to ascertain with what
intent
the delivery of the slave to the plaintiff was made. If the delivery was of the slave, as the property of the plaintiff, under the parol contract of sale, and the bill of sale which was afterwards to be given, was only for further assurance, then the slave passed to the plaintiff, and was at his risk. If the slave was put into the possession of the plaintiff, but not as his property, until a bill of sale should be executed by the defendant, and it was understood and intended by the parties, that the title of the slave should not pass until the bill of sale should be so executed, then the possession of the plaintiff was a
bailment,
and the risk was with the defendant; and it would be no payment of the bond, on which this action is
*360
founded. The Court decided upon the intent, arising out of these various circumstances, when that intent, as it seems to us, should have been left to the jury. A new trial must be granted.
