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sold on execution as the property of F. by his creditors, it was held, that the levy and sale did not impair F's. right to recover

the price on his contract against D. Io. 4. A mortgage made by S. of the machinery before it was all

actually delivered to him, was held not to be evidence of his

acceptance thereof. Ib. 5. A bona fide sale of chattels, though it passes the property as

between the vendor and vendee without any delivery to the vendee, yet leaves them liable to be taken as the property of

the vendor by his creditors. Shumway v. Rutter, 7 Pick. 56. 6. Furniture was fairly sold by A to B for a valuable considera

tion, and B took a lease of the house in which A resided from the landlord, but took no possession of the furniture and made no agreement as to A's continuing to use it, and A afterwards moved to another place taking the furniture with him, and from time to time added to it new articles of his own. The furniture was attached in a suit against A as his property, and B brought trover against the officer. Held, that the furniture was liable to attachment by A's creditors,

and that the action by B could not be maintained. Ib. 7. A lease of a brick-yard in which the rent is to be a certain

sum of money on every thousand of bricks manufactured by the lessee, and in which the lessee covenants to manufacture a certain number at least, every year, contains a provision, that in lieu of the money for the rent, the lessor may'at his option from time to time, as bricks shall be manufactured by the lessee, “take to himself and appropriate to his own use at the fair market price, at the kiln, such quantity of bricks as shall be fully equivalent to the sum which' the lessee has stipulated to pay. It seems, that the lessor has no property in the bricks under this provision, until he takes possession of them, and that liis right of election ceases at the death of the

lessee. Wait, Appellant, 7 Pick. 100. 8. One having fraudulently obtained goods under pretence of a

purchase, the creditor pursued him for satisfaction; and a compromise was so far effected, as that, for a valuable consideration, the creditor, affirmed the sale from himself, and agreed that the debtor might sell the goods to A. Afterwards, the original term of credit having expired, the creditor sued the debtor, and attached the same goods as his property; and in an action of trespass, brought by A against the sheriff for taking these goods, it was held that the terms of the agreement did not estop the creditor from impeaching the sale to A as fraudulent. Dingley

v. Robinson, 5 Greenl. 127. 9. Where parties agree to rescind a sale once made and perfect

ed without fraud, the same formalities of delivery, &c. are necessary to revest the property in the original vendor, which

were necessary to pass it from him to the vendee. Quincy v.

Tilton, 5 Greenl. 277. 10. It seems that a sale of standing trees by parol, though it might

bind a subsequent purchaser of the land having notice of the sale, yet without such notice it cannot affect him. Gardiner

Man. Co. v. Heald, 5 Greenl. 381. 11. Whether an action will lie against a vendor for false and

fraudulent representations respecting the ownership and character of the thing sold, where the conveyance was by deed with express covenants upon those points;—quære. Sherwood

v. Marwick, 5 Greenl. 295. See CONTRACT; MORTGAGE OF CHATTELS. SEAMAN. Where a vessel on a voyage to Trinidad, and back to her port of

discharge in the United States, was captured in the year 1797 by the cruisers of the king of Spain, and condemned; and a sum of money was allowed and paid to the owners in 1824, under the Spanish treaty, for the loss of the vessel and freight; it was held that the receipt of the money by the owners, did not revive the claim of a seaman for his wages for the homeward voyage, even up to the time of capture. Manson v. Gar

diner, 5 Greenl. 108. See Money HAD AND RECEIVED, 3. SETTLEMENT. See Poor. SET-OFF. Where the endorsee of a promissory note has only a lien upon a

part of the amount, as collateral security for money due from the promisee; a debt due from the promisee to the maker of the note may be set off against the residue, upon motion, though such debt consists of a judgment recovered in another

court. Moody v. Towle, 5 Greenl. 415. SHERIFF. 1. A attached an equity of redemption of land of B, and C sub

sequently attached the same equity. The equity was taken on an execution in A's favor, and advertised for sale, but the advertisement published in the newspaper did not specify any place of sale. The sale was made on the land, C acting as auctioneer. At the sale, C set up the estate as subject to no incumbrance but the mortgage: and nothing was said of his having a subsequent attachment. The equity brought a fair price. The officer's return stated that he had advertised the place of sale in the newspaper. C, having afterwards obtained judgment and execution in his suit against B, brought an action against the sheriff for the false return of his deputy. Held,

that the return was false. Whitaker v. Sumner, 7 Pick. 551. 2. In an action against the sheriff for neglect or misconduct in

the service of an execution, he is not permitted to impeach the creditor's judgment, except on the ground that it was obtained

by fraud. Adams v. Balch, 5 Greenl. 188. SHIPPING The purchase of a ship, in a foreign port, by the master, at a sale

by authority, is generally to be considered as made for the benefit of the owners, if they elect so to regard it. Chamber

lain v. Harrod, 5 Greenl. 420. SLANDER. 1. In an action for slander in saying the plaintiff took a false

oath' before referees, the defendant pleaded the general issue, and also in justification that the words were true; and offered evidence in support of the special plea. It was held, that the jury had a right, under the general issue, to consider whether this evidence showed that the words had relation to the plaintifl’s testimony on immaterial points, and so did not import a

charge of perjury. Sibley v. Marsh, 7 Pick. 38. 2. In an action for slander a new trial will not be granted on the

ground of excessive damages, unless they are so enormous as to satisfy the court that the jury have been actuated by passion or some undue influence.

Shute v. Barrett, 7 Pick. 82. 3. In an action for slander, in charging the plaintiff with adultery,

where the plaintiff was superintendant of an almshouse, and the defendant a man of property, and the words were spoken at a town meeting, on a debate relative to the appointment of a new superintendant, and the verdict was for 707 dollars, the court refused to grant a new trial on the ground of excessive

damages. Ib. 4. In an action against the same defendant, by an unmarried fe

male, who was an assistant in the almshouse, for the same slander, where the verdict was for 591 dollars damages, a new trial on the ground of excessive damages was refused. Oakes

v. Barrelt, 7 Pick. 82. SURETY, Where the

payee of a note, after having been requested by the surety to collect the money of the principal, gave further time to the principal, in pursuance of a new verbal agreement with him to that effect, it was held that the surety was discharged.

Kennebec Bank v. Tuckerman, 5 Greenl. 130. See Estate, 2. TAX. 1. The provision in the act of congress of Jan. 9, 1815, that the

direct tax laid thereby shall remain a lien on land during two years after it shall become payable, does not restrain the collector from selling the land after the two years have expired, where there has been no alienation of it by the owner. Hol

den v. Eaton, 7 Pick. 15. 2. Where no return had been made to the clerk of the District

Court of a sale of land for the United States direct tax of 1815,

to enable him to give a deed to the purchaser, it was held, that a demand of a deed was not necessary in order to sustain an action by the purchaser against the collector for not causing such a

return to be made. Ib. 3. In such an action the declaration should contain an allegation

that the tax had been duly assessed. Ib. 4. The town of W. when it constituted but one parish, erected a

meeting house; and after several years, divers citizens having in the mean time become members of other parishes, the town in its municipal capacity raised money to repair the house; which was assessed generally on ah the inhabitants.

It was holden that this assessment, so far as these citizens were concerned, was illegal.

Paine v.


AND RECEIVED, 1, 2; Estate. TENDER. See CONTRACT, 6. TOWN. In 1819 a town voted to raise a sum of money for state, county,

and town taxes, and the same was assessed, collected, and paid in due proportions into the state, county, and town treasuries; but in consequence of irregularities in the assessors' proceedings, the assessment was held to be illegal, and the assessors, in order to prevent actions of trespass being commenced against them by individuals whose property had been distrained, refunded each a third part of the amount which had been collected by distress, and afterwards, in 1824, the town voted to raise a sum of money, and when collected, to direct the town treasurer to pay over to the former assessors the amount which

they had so refunded for the use of the town. It was held, That without such a vote the town could not have been compell

ed to indemnify the assessors ; — That this vote was a promise, founded, so far as regarded the

town tax, on a valid consideration, and that it could not be re

scinded by a subsequent vote;That in respect to the state and county taxes, this promise was

without consideration ;That the plaintiff, one of the assessors, might bring his separate

action against the town to recover his third part embraced by

the promise ;-) That his own tax, paid by him voluntarily, was not included in

the promise, and could not be recovered back. Nelson v. In

habitants of Milford, 7 Pick. 18. TRESPASS. For executing legal process in an unlawful manner, trespass is

proper remedy. Green v. Morse, 5 Greenl. 291. See TROVER. TRIAL. See SLANDER, 1.

A judgment in trover, if execution be sued out thereon, though

without satisfaction, is a bar to an action of trespass afterwards brought by the same plaintiff, against another person, for taking

the same goods. White v. Philbrick, 5 Greenl. 147. TRUSTEE PROCESS. 1. Where a person summoned as trustee, who was indebted to

the principal defendant at the time of the service of the writ, had before that time endorsed a note of the defendant, to a larger amount; which became payable before the trustee made his answer, and which he was compelled to pay as endorser before making his answer, in consequence of the maker's failing to pay it, it was held, that the supposed trustee might setoff the amount thus paid by him against the debt due from liim, and that therefore he could not be chargeable. Boston Type

and Stereotype Foundry v. Mortimer, 7 Pick. 166. 2. Where one summoned on a trustee process disclosed in his

answers, that the principal defendant had by deed assigned personal property to him to secure the payment of debts due to him and to other preferred creditors, and had at the same time made to them a deed of real estate for the same purpose, though absolute on the face of it, and in which the consideration was expressed to be 7500 dollars paid to the grantor; and that previous to the service of the trustee process the preferred creditors had notice of the deeds and assented to them; and further, that the personal property was of itself more than suflicient to pay the preferred debts :-it was held, that the real estate passed by the deed ; that it should be applied, at its actual value, to the payment of the preferred debts, before resort was had to the personal estate; and that for the surplus of the personal estate, not required for the payment of the balance of those debts, the respondent was chargeable as trus

tee. Webb v. Peele, 7 Pick. 247. 3. If the trustee in a foreign attachment discloses an assignment

of the debt to a third person, who thereupon is made a party to the suit, pursuant to the Stat. 1821, ch. 61;—the trustee is bound by the result of the ulterior litigation in that suit between the creditor and the assignee, in the same manner as they are, though he had no agency in making up the issue. Fisk v.

Weston, 5 Greenl. 410. 4. A feme sole being summoned as trustee in a foreign attachment,

took husband pendente lite, and afterwards disclosed, and was adjudged trustee. On scire facias brought against the husband and wife, to have execution de bonis propriis, they pleaded that at the time when, &c. she had no goods, effects, or credits of the principal in her hands; and on general demurrer the plea was held bad. Crockett v. Ross, 5 Greenl. 443.

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