SET-OFF. 1. (Of executions.) Whether, where the creditor in one execution is joint debtor with others in another execution, the officer, having both in his hands, is bound by Maine Stat. 1821, ch. 60, s. 4, to set off one against the other, at the request of such creditors; - dubitatur. Gould v. Parlin, 7 Greenleaf, 82. 2. (Of judgments.) If a party has once applied to the discretion of the court, by motion, to set off one judgment against another, which is refused, after a full hearing on the merits; he cannot afterwards maintain an action against the sheriff to whom both executions have been delivered, for refusing to set off the executions in the same manner. lb. 3. Aliter, if the court declined interfering at all in the matter, in that summary mode. lb. 4. (Promissory notes.) Where A was indebted to the estate of M in several promissory notes, which were put in suit by the administrator of M and the estate of M was also indebted to the estate of S, of which A and M were joint residuary legatees, it was held that M's administrator could not be compelled to account to A for the moiety of the sum so due from the estate of M, by cancelling and delivering up the notes in suit; and a bill brought by A for this purpose was dismissed. Robinson v. Swift, 3 Vermont, 377. 5. But it might have been ruled otherwise, had the executor of S been insolvent or had colluded with the administrator of M. lb. See SALE OF CHATTELS, 2; PROMISSORY NOTES, 7, 8, 9; TROVER, 2; CONSIDERATION, 1, 2; MORTGAGE, 10-13; JUDGMENTS AND EXECUTIONS, 10. SHERIFF. 1. (Action by bail for false return.) Where one became bail at the request of a third person, who afterwards paid him the greatest part of the judgment, which the bail had been compelled to satisfy; this was held to constitute no defence for the sheriff, in an action brought against him by the bail for a false return on the execution. Kidder v. Parlin, 7 Greenleaf, 80. 2. (Suit for not seizing on execution property attached on writ.) In an action against an officer for not keeping and delivering personal property attached by him on a writ in favor of the plaintiff, he will be allowed to prove that the same property was at the same time attached by him on another writ in favor of the same plaintiff and against the same defendant, and that the amount of the judgment recovered in such other suit had been recovered of him by the plaintiff. The officer in this case had not stated in his return that one attachment was subject to the other. Southwick v. Weeks, 3 Vermont, 49. 3. The plaintiff in this case was allowed to recover of the officer only the balance of property remaining in his hands after satisfying the judgment recovered against him for the same property in the other suit. lb. See ESCAPE, 1, 2; EVIDENCE, 31; JUDMENTS AND EXECUTIONS, 5, 8, 9; SET-OFF, 1, 2, 3. SHIPPING. 1. (Liability for supplies.) Where a fishing vessel was let on shares to the master, who was to victual and man her, the owner having nothing to do with the purchase of supplies, nor with the employment of the vessel; it was held that the owner was not liable for supplies furnished to the master. Winsor v. Cutts, 7 Greenleaf, 261. 2. (Liability of mortgagee.) Whether one holding the title to part of a fishing vessel, as security for the payment of the purchase money, in trust for the master who had contracted for the purchase, and had taken the vessel for the fishing season on the usual shares, is liable for supplies furnished to the master; quære. Ib. See SALE, 1, 2, 3. SLANDER. 1. (Arrest of judgment.) A judgment in an action of slander, for charging the plaintiff with altering a note, will not be arrested because the plaintiff, in his declaration in the indictment to the charge, avers that the note charged to be altered is a true note; such averment being equivalent to the ordinary averment of innocence of the crime imputed. Harmon v. Carrington, 8 Wend. 488. 2. (He has sworn falsely.') Slander lies for saying of another, 'he has sworn falsely, and I will attend to the grand jury respecting it,' without a colloquium shewing the speaking of the words to refer to proceedings in which perjury could have been committed. Gilman v. Lowell, 8 Wend. 573. 3. (Evidence in mitigation of damages.) Circumstances which disprove malice, but do not tend to establish the truth of the charge, may be given in evidence in mitigation of damages; thus, where a party charged another against whom a justice's judgment was obtained, with false swearing, in making oath that he was a freeholder, he was allowed to show, that on search for the deed in the clerk's office, where by law it was required to be recorded, it was not found, owing to a mistake of the recording officer in indexing his records. 1b. 4. (Proof of absence of malice.) Notwithstanding such proof the plaintiff is entitled to recover. lb. 5. (Plaintiff's rank and condition may be proved.) It seems that in the action of slander, the plaintiff's rank and condition in life may be given in evidence to enhance the damages. 1b. 6. (Author given, general report.) In slander, it is no defence, nor can it be given in evidence in mitigation of damages that the defendant at the time of the speaking of the words gave his author, and was, in fact, told by another what he uttered against the plaintiff. Inman v. Foster, 8 Wend. 602. 7. Nor can general reports of the truth of the charges be given in evidence in mitigation of damages, unless they be such as to have affected the general character of the plaintff. 8. (Proof of malice.) Words spoken more than two years before suit brought may be given in evidence to show malice. lb. 9. (Proof of plaintiff's general character.) Proof in support of the plaintiff's general character is admissible, where his reputation has been attacked on the trial by the defendant; otherwise not. lb. Ib. STATUTE OF LIMITATIONS. See LIMITATIONS. SURETY. (On executor's bond.) In an action against the surety in an executor's bond, he is not precluded, by a previous judgment against the executor, in a suit by a legatee, from showing a deficiency of assets. Hayes v. Seaver, 7 Greenleaf, 237. See PAYMENT, 4, 5; ACTION, 3. TENANTS IN COMMON. (License by one to cut timber.) A license, by one of two tenants in common, who are also partners in the lumber business, to a third person, to cut timber on the lands held in common, from which the tenants in common procure timber to carry on their business, is good, and confers title to the timber cut by such person, especially where the license is in satisfaction of a demand due from both tenants in common. Baker v. Wheeler, 8 Wend. 505. TENANT AT WILL. (Manure attachable.) The manure on a farm in the possession of a tenant at will is liable, during the continuance of his tenancy, to be seized in execution and sold for the payment of his debts. Staples v. Emery, 7 Greenleaf, 201. TENDER. 1. (Waiver of tender.) Where a town order, payable in corn and grain, was presented to the town treasurer, who offered to pay it in those articles, but said that if the payee would wait till a future day he would pay it in money, which was agreed; it was held that this was a waiver of the tender, and that the treasurer had sufficient authority thus to bind the town. Veazy v. Harmony, 7 Greenleaf, 91. 2. (Things tendered must be separated from a mass.) When specific articles, as corn or the like, being a part of a larger quantity, are tendered, it seems they should be separated and set apart from the mass in which they are contained, that the party may see what is offered, and is to be his own. lb. See MORTGAGE, 2, 3, 4. TOWNS. See MILLS, 1. TRESPASS. 1. (Collision of boats.) In an action of trespass against the master of a boat navigating the Erie canal, for running her against another boat lying in the canal, waiting her turn to pass the locks, the judge presiding at the trial charged the jury that the defendant was liable if he had been guilty of negligence, or intended to inflict the injury; but that if there was no negligence or design of injury, and if in attempting to pass, the defendant managed his boat in a prudent and skilful manner, and the injury was sustained by means of the acts of the plaintiff himself, or by mere accident, the defendant was not liable; and the jury found for the defendant—a new trial was granted for the omission of the judge to instruct the jury to inquire whether, under the circumstances of the case, the defendant was not bound to know that his boat could not pass without hazard, and if he was, whether he ought not to have proceeded with greater caution. Dygert v. Bradley, 8 Wend. 469. 2. (Property taken by servant through mistake.) Trespass will not lie against a person for the taking of property by mistake, by his servant, where no direction or authority is given by the principal to take the particular property in question, and where there is no subsequent assent or approbation with a knowledge of the trespass. Broughton v. Whallon, 8 Wend. 474. 3. (Pleading, proof of locus in quo.) In trespass quare clausum fregit if the declaration be general, without naming the locus in quo or the abuttals of the close, and the defendant pleads liberum tenementum, upon which the plaintiff takes issue, instead of new assigning, the defendant verifies his plea by shewing title to any lands in the town where the premises are alleged in the declaration to be situate. Austin v. Morse, 8 Wend. 476. 4. (De bonis asportates for levy of execution.) Trespass de bonis asportatis lies for levying upon the property of A under an execution against B and requiring the engagement of a receiptor that the property shall be forthcoming, or the amount of the execution paid; although there has been no removal of the property, and the receiptor permits the party to remain in possession, and to dispose of it as his own. Phillips v. Hall, 8 Wend. 610. 5. (By sheriff against receiptor.) In an action by the sheriff against the receiptor, it seems that the latter, where he has permitted the party to remain in possession, and use the property as his own, would be estopped from denying the right of the sheriff; it would be otherwise where he is deprived of the property by force, or by operation of law. Ib. TRESPASS ON THE CASE. (For flowing.) Where A owned land through which an ancient stream of water passed, and B, owning land below, through which the same stream passed, erected a dam across the stream on his own land, which flowed the water back on A's land, it was held that A might recover for the injury in an action on the case. Johns v. Stevens, 3 Vermont, 308. TROVER. 1. (By party having special property against owner.) In trover a party having the special property in a suit against the general owner, or one claiming under him, is entitled to recover only the value of the special interest. Spoor v. Holland, 8 Wend. 445. 2. (For note negotiated after being paid.) Where the payee of a note, which ought to have been given up to the maker, sold and transferred it to a third person, who afterwards sued the maker thereon and recovered judgment—it was held, that the action of trover would lie by the maker against the payee to recover the amount of the note; and that, if said judgment had any effect on the rights of the parties, an exemplification of the record ought to have been produced, to show that such a judgment had been rendered. Buck v. Kent, 3 Vermont, 99. See DAMAGES, 1, 2; PARTNERS AND PARTNErship, 2. TRUSTS AND TRUSTEES. 1. (The trustee conveys the estate to himself absolutely through another.) Where a trustee, authorized to sell and convey lands, executes a deed for a valuable consideration of part of the trust estate, and immediately thereafter takes a re-conveyance to himself of the premises granted, the conveyance is valid at law; 56 VOL. IX.NO. XVIII. |