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III. Liability of Trustee vendors.

I. What constitutes.

1. A being indebted to B., by a promissory note, for $1,167, it was agreed in
writing between them, that A. should deliver to B. as much coal at ten
dollars per chaldron, as would amount to the sum due on the note, the coal
to be of the like quality with that purchased by A. of B. out of a certain
ship. No time or place were fixed for the delivery. A. having in his coal
yard a large quantity of coal, and sufficient of the quality mentioned,
though consisting of different kinds, immediately afterwards, and at diffe-
rent times, tendered to B. the coal, in satisfaction of the note, and B. made
no objection to the place or mode of delivery, but said, at one time, he would
send and take them, and at another, that he was not ready to receive them,
and finally neglected to take them. In an action, afterwards brought by
B. against A., on the note, it was held that the agreement for the delivery
of the coal was valid, and that the tender on the part of A. was equivalent
to a performance, so as to bar the plaintiffs' action, and might be pleaded
by way of accord and satisfaction.

An accord, in order to be an effectual plea in bar, must be executed and sa-
tisfied with a recompense in fact, or with an action, or other remedy to
execute it and recover a recompense. Per Thompson, J., the other judges

acc.

It is a principle settled, that if a person is to acquire a right to a debt or duty
by previously doing some act, this right as commonly vested by an offer
to do it and a refusal, as if the act had been actually performed, or, in other
words, a tender and refusal is equivalent to a performance. Per Living-

ston, J, the other judges acc.

Radcliff, J., thought that the defendant ought, in strictness, to have separa-
ted the quantity sold, in order to make a specific tender, and to ascertain
that it corresponded with the quality contracted for: aud that the accord
was never in fact executed.

Coit and Woolsey v. Houston, 243, 559.

II. Conditional-right to rescind.

2. An agreement for the purchase of a negro boy, with a privilege to the
purchaser to return him within a certain time, is valid.

Giles v. Bradley, 500. See vol. 2, p. 253.

III. Liability of Trustee Vendors.

3. The trustees sold all the right of the company in lands, to part of which
the title failed; held, that they are not liable to refund the consideration

money.

Murray v. Trustees of the Ringwood Iron Co., 507.

See CONTRACT. SALE AT AUCTION.
CONCERNING.

See vol. 2, p. 278.

SLAVES, ACT

SALE AT AUCTION.

1. The land of A. was advertised for sale by the sheriff on an execution
against A., at the suit of B. C. who had purchased the land without
knowing of the judgment and execution, agreed with B. who attended the
sale, that if he would not bid against him he would pay B. the amount of
his execution, and give him his note for the further sum of 150 dollars, and
B. acceded to the terms and desisted from bidding.

In an action on the note against C., by the second endorsee, to whom it had
been negotiated, after it became due and with a knowledge of the circum-
stances, under which it was given, it was held that the consideration of the
note might be inquired into; and that the consideration being unconscien-
tious, and against public policy, the note was void.

Jones v. Caswell, 29, 529.

Cases and authorities, 33, n. (b.) 33 n. (c.) 34 n. (d.)

SATISFACTION.

Defendant was indebted to plaintiff on single bill. Defendant gave to others
a bond, and confessed judgment thereon, for a sum including the plaintiff's
debt, and in trust for him. The plaintiff affirmed the trust by suing out
execution on the judgment. Held to be a bar to his recovery on the single
bill. Seaman v. Haskins, 487. See vol. 2, p. 195.

SEAWORTHINESS.

See INSURANCE.

SERVICE OF PAPERS.

See PRACTICE.

SET OFF.

I. Of the right generally.

II. Of Promissory Notes Purchased after suit com-

menced, or Assignment.

III. Plea and Notice of

I. Of the right generally.

1. Where a right of action is vested, and an action commenced, nothing can
deprive the plaintiff of his right to recover, except some act done by him-
self in relation to that right.

A debt or demand, to be set off under the statute, must be an existing debt
or demand, at the time of the commencement of the plaintiff's suit.

Fictio juris is never allowed to work an injury or prejudice to any party.

Per Radcliff, J Carpenter v. Butterfield, 144.

Cases and authorities, 150, n. (b.) 156, n. (c.) and (d.)

II. Of Promissory Notes purchased after suit commenced,
or Assignment.

2. Where a defendant, after a writ issued against him, of which he had no-
tice and before he was actually arrested, purchased a promissory note,
made by the plaintiff, which was endorsed to him for the avowed purpose
of setting it off against the plaintiff's demand; it was held the set-off was
not admissible. Carpenter v. Butterfield, 144, 547.

Cases and authorities, 150, n. (b.) 156, n. (c.) and (d.)

3. A note purchased at an under value by the debtor of an insolvent, after
notice of the insolvency, not allowed to be set off in a suit brought in the
name of the insolvent, for the benefit of his assignees.

Circumstances to excite inquiry, sufficient notice, and the interest of the as-
signees protected in this suit in the name of the insolvent.

Johnston v. Bloodgood, 428. See vol. 1, p. 51.

III. Plea and Notice of.

4. Non assumpsit as to all except forty cents, and payment of the forty cents
with notice of set off of much larger sums; held-

1. That the defendant is not permitted, in any case, to set off more than the
sum pleaded; and

2. That the plaintiff suing as endorsee of a promissory note against the mak-
er, and the payment set up being made to the payee of the note, the endor-
see would not be affected by it.

Prior v. Jacocks, 439. See vol. 1, p. 169.

SHERIFF.

I. Attachment against.

II. Bond-to remain a Faithful Prisoner Against es-

capes.

III. Bond for Ease and Favor.

IV. Deed of.

V. Sale by.

VI. Voluntary escape.

1. What is.

2. Effect of.

I. Attachment against.

1. A sheriff is not liable for a contempt in not acting on process delivered to

his deputy, unless it appear to have come to his hands.

The People v. Waters, 433. See vol. 1, p. 137.

II. Bond—to remain a faithful prisoner—Against escapes.

2. A bond at common law, conditioned that a prisoner should remain a true
and faithful prisoner in the jail, is valid and not a bond for ease and favor
within the statute 23d H. 6, c. 10.

But a bond against escapes, which implies a permission to escape on being in-
demnified, has been held void, &c.

Dole v. Bull & Porter, 498. See vol. 2, p. 239.

3. The act, (sess. 24, c. 91,) as to jail liberties, is imperative on the sheriff,
who is bound to grant the liberties to the prisoner on his tendering a suffi-
cient bond; but as this bond is intended only for the sheriff's indemnity,
he may waive it, and grant the liberties, without taking the bond; and he
will not therefore, be liable for an escape.

Holmes v. Lansing, 73. See 446, 535.

III. Bond for Ease and Favor.

See Supra, Dole v. Bull & Porter. ESCAPE.

IV. Deed of.

4. A sheriff's deed conveying certain lands by metes and bounds, together with
"all ways, paths, easements," &c, does not include lands held by a dis-
tinct title, though adjoining the premises, and formerly purchased and used
as a road for the same, when it is not included within the description of the
premises.

A subsequent deed from the sheriff will not help if such road was not known
at the time of the sale, and understood to be part of the premises sold.
Jackson, ex dem. Jones v. Striker, 450. See vol 1, p. 284.

V. Sale by.

5. On a sheriff's sale by an alias fi. fa., held :

1st. That the alias clause may be rejected, no previous fi. fa. having issued.
2d. That the sheriff's return on the writ is not material to the purchaser's
title.

3d. That the purchase of an agent for the plaintiff, and a deed to him creates
a resulting trust for the plaintiff, not within the statute of frauds, and that
the possession of the defendant is not to be deemed adverse to the purchaser
without an actual disseisin or ouster.

Jackson, ex dem. Kanes v. Sternbergh, 440. See vol. 1, p. 153.

VI. Voluntary escape.

1. What is.

6. In an action against a sheriff for an escape, if it be averred, or found on
the record. that the sheriff permitted the prisoner to escape, it is equivalent
to a finding of a voluntary escape. Holmes v. Lansing, 73. See 446, 535.

See JAIL LIBERTIES. ESCAPE.

2. Effect of.

7. A sheriff after suffering a voluntary escape of a prisoner on execution, can
never retake him nor lawfully detain him, although he voluntarily returns
and submits to the process. Radcliff, J. contra.

Lansing v. Fleet, 474. See vol. 2, p. 3.

SLANDER.

I. Words spoken of one in office.

1. Actionable.

2. Must be spoken of the person in his official capacity.
II. Words otherwise actionable explained by reference to
known transaction.

I. Words spoken of one in office.

1. Actionable.

1. Words spoken of the plaintiff as sheriff, importing malconduct in his office,
are actionable. Dole v. Van Rensselaer, 461. See vol. 1, p. 330.

2. Must be spoken of the person in his official capacity.

2. These words in slander "Squire Oakley is a damned rogue," held not to
be spoken of the plaintiff in his character of a justice, and therefore not
actionable. Oakley v. Farrington, 434. See vol. 1, p. 129.

II. Words otherwise actionable explained by reference to

3. In slander.

known transaction.

Words otherwise actionable, explained at the time by referring to a known
and particular transaction, are to be construed accordingly, and were held
not actionable.

The verdict being found against the charge of the court on this point, was
considered as a verdict against law, and the costs therefore to abide the
event of the suit. Dole v. Rensselaer, 458. See vol. 1, p. 279.

SLAVES, ACT CONCERNING.

1. An indenture that a slave shall serve another until both parties agree to
vacate the same, is equivalent to a sale.

Executors and persons acting in auder droit, may sell a slave, notwithstand-
ing the act of the 22d February, 1788. Sable v. Hitchcock, 479.
See vol. 2, p. 78

2. A slave escaping from another state into this, and afterwards sold here by
the master, is equivalent to a "bringing in," in the first instance, and within
the act of 22d February, 1788.

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