If the defendant disabled himself from complying with his contract, by conveying the estate to another oerson within the time limited in the contract for making a *236conveyance to the plaintiff, the tender of performance on the part of the latter is not necessary. Newcomb v. Brackett, 16 Mass. 161; Yelv. (Amer. ed.) 76, in notis. The day of the date (April 19th) being excluded, the plaintiff would have been in time to offer performance, at any time on the 9th of May; if therefore during that day the defendant conveyed, it was an excuse.

As to the other point: The suit in equity was between others; it could only be sustained by affecting Bigelow with notice. A judgment for the defendants in that suit therefore does not tend to negative the defendant’s breach of contract, on which this action at law is brought.

Exceptions overruled.