Mehaffy v. . Spears

NOTE BY REPORTER. — Notwithstanding the circumstance of the defendant having killed part of the cattle, and disposed of others of them, it seemed to be agreed by the attorneys on both sides, and indeed to be admitted by all the bar, and by Judge MACAY, that if this issue should be found against the plaintiff, he would thereby be utterly barred of his recovery upon the covenant. This seems to be amongst the (143) apices stricti juris that are not very conformable to the common ideas of justice. Shall the defendant be allowed to retain the value received for the cattle, by killing and disposing of them, and be discharged at the same time, by his tender, from a debt of the same value due to the plaintiff? Shall he be discharged of his debt when it is apparent the refusal on the part of the plaintiff has not been attended with any loss to himself? *Page 103