March, 1842. note's being payable in good, well-finished plows,' which CALEDONIA, doubtless would include such as were of ordinary use, at the time the contract was entered into, it would be confined to such as should be subsequently made, according to the improved pattern. The more important question in the case arises upon the tender. The note was payable in the month of February. The case finds that on the last day of January, 1840, the defendant set apart plows, of the kind and quality described in the note, to the amount of the note, and marked the plaintiff's name on each one of them, and they remained near the defendant's shop, where they were turned out, down to and through the month of May, when the note was sued. As the plows were turned out before the note became due, they did not, at that time, vest in the plaintiff, and the note was not then paid. The note, by its terms, being payable in the month of February, the defendant might pay it any day in the month. Under the charge of the court the jury must have found that the plows were turned out for the purpose of paying the note, and were kept in that condition, and for that purpose, from that time through the month of February. It is said, in argument, that about the first of May it was discovered that the wheels of two of the plows had been taken away, but there is no evidence that this was done before the note became payable, and the jury have negated the fact that it occurred before the first of March. The jury, then, have found that there was a continuation of, or keeping good, the tender or turning out of the property up to and through the last day upon which the note was payable. The law never requires a useless act, and we can see no reason why the defendant should be again required to turn out the property in direct terms. It had been expressly turned out, set apart, and marked with the plaintiff's name. The jury have found the purpose and the intent with which it was done, and that the plows were kept in the same place and condition down to the first of March. The effect of the finding of the jury must be to vest the property in the plows in the plaintiff, and the note is thereby satisfied. See Mc Connell v. Hall, Brayton's R. 223. It was of no consequence to the parties that the defendant should have caused the plows to be examined on some day upon which the note was payable, except it Gilman v. Moore. March, 1842. Sanderson D. CALEDONIA, might have the more readily furnished him with the means of proof. If we admit that the defendant, as is contended, after this became the bailee of the property, still the payment of the debt would not be affected, though the property might have been damaged or carried away through his neglect. The remedy, in such case, would be by a special action for such negligence. Hubbard. The judgment of the county court is affirmed. JACOB SANDERSON v. ORREN HUBBARD. In actions of slander for words, not actionable in themselves, charging a THIS was an action on the case for slanderous words, in three counts. The allegations in the first count, after reciting the previous good character of the plaintiff, &c., were as follows: And whereas, also, before the committing of the grievIances by the defendant, as hereinafter mentioned, a certain 'arbitration had been depending at said Burke, before Philip Smith and Haines W. Beldin, arbitrators, mutually chosen 'by the parties, to determine a certain action on book ac'count, (as well as all matters in controversy between the 'parties,) wherein the said Orren Hubbard was the plaintiff, and the present plaintiff was the defendant, and which v. Hubbard. 'said action, and all matters in controversy between the said CALEDONIA, March, 'parties, had then been lately heard and tried by the said 1842. 'arbitrators, at said Burke, to wit, on the 20th day of June, Sanderson 1840, and on such trial, before said arbitrators, the present 'plaintiff had been and was examined, on oath, and had given his evidence as a witness for and on his own behalf, 'to wit, on the 20th day of June, 1840; yet the said defen'dant, in no wise ignorant of the premises, but contriving, ' and maliciously intending, not only to injure the said plain'tiff, and deprive him of his good name, and cause it to be 'suspected and believed, by those neighbors and citizens, that 'he, the plaintiff, had been and was guilty of perjury, and to 'subject him to the pains and penalties by the laws of this 'state made and provided against and inflicted upon persons 'guilty thereof, to wit, on the 20th day of June, 1840, at 'said Burke, in a certain discourse which he, the said defen'dant, then and there had with the plaintiff, in the presence 'and hearing of divers good citizens of this state, then and 'there, in the presence and hearing of the said last mentioned 'citizens, falsely and maliciously spoke and published to, of 'and concerning the plaintiff, and of and concerning the evi'dence by him, the present plaintiff, given on said trial 'before the said arbitrators, as such witness as aforesaid, 'these false, scandalous, malicious and defamatory words fol'lowing, that is to say, "You (meaning the plaintiff) took a "false oath, and I (meaning the defendant) can prove it." Second count. 'And afterwards, to wit, on the day and 'year last aforesaid, at Burke aforesaid, in a certain other 'discourse which the said defendant then and there had with 'the plaintiff, in the presence and hearing of divers good citi'zens of this state, then and there, in the presence and hear'ing of the last mentioned citizens, falsely and maliciously 'spoke and published to, of and concerning the plaintiff, and ' of and concerning said arbitration, and of and concerning 'the testimony by him given on said trial, before said arbi'trators, as such witness as aforesaid, these other false, scan'dalous, malicious and defamatory words following, that is to 'say, "you (meaning the plaintiff) took a false oath about "that fence, and I (meaning the defendant) will bring you "(meaning the plaintiff) up for it," and thereby, then and 'there, meaning that the plaintiff, in giving his testimony as CALEDONIA, 1842. Sanderson v. Hubbard. 'such witness on said trial, before said arbitrators as afore'said, had committed wilful and corrupt perjury, and that he 'would cause the plaintiff to be prosecuted therefor.' Third count. 'And afterwards, to wit, on the day and year last aforesaid, at Burke aforesaid, in a certain other 'discourse which the said defendant then and there had in 'the presence and hearing of divers good citizens of this state, he, the said defendant, further contriving and intend'ing as aforesaid, then and there, in the presence and hear'ing of the said last mentioned citizens, falsely and mali'ciously spoke and published of and concerning the plaintiff 'and of and concerning the testimony by him given on said 'trial, before said arbitrators, as such witness as aforesaid, 'these other false, scandalous, malicious and defamatory 'words following, that is to say, "he (meaning the plaintiff) "took a false oath, and I (meaning the defendant) will make "him (meaning the plaintiff) smart for it," and thereby, then ' and there, meaning that the plaintiff, in giving his testimony ' as such witness on said trial, before said arbitrators as afore'said, had committed wilful and corrupt perjury, and that he 'would cause the pains and penalties of perjury to be inflict'ed on the plaintiff. By means of publishing which said 'false, feigned, scandalous and malicious words, he, the said 'plaintiff, is not only injured and prejudiced in his good ' name and reputation, but has been liable to be presented 'for perjury,' &c. The defendant pleaded not guilty, and the following special plea in bar: That though true it is that a certain arbitration had been depending at said Burke, before Philip Smith and Haines 'W. Beldin, arbitrators, mutually chosen by the parties, to 'determine a certain action on book account, as well as all 'other matters in controversy between the said parties, the present plaintiff and defendant, which had then been lately 'tried before said arbitrators at said Burke, to wit, on the 20th day of June, 1840; and on such trial, before said arbitrators, the said Jacob Sanderson had been and was exam'ined on oath, and had given his testimony as a witness in his own behalf, to wit, on the 20th day of June, 1840; and 'the said Jacob Sanderson, on giving his said testimony, did, ' on his said oath, knowingly, falsely and corruptly swear and 'affirm of and concerning a certain item in his the said San- CALEDONIA, March, 'derson's exhibit before said arbitrators, against him the said 1842. 'Hubbard, of the following tenor, " May 25. To burning up Sanderson "twenty rods of my fence $3.34;" that a fire, set by the 'said Hubbard, had taken in the fence of the said Sanderson 'and burnt up twenty rods of said fence. 66 And the said Jacob Sanderson having knowingly sworn 'falsely and corruptly to the aforesaid facts, which were then ' and there deemed material on said trial, the said Hubbard 'did afterwards, as he had a good right to do, at said Burke, 'on the 20th day of June, 1840, speak and publish of and 'concerning the said Jacob Sanderson, and of and concern'ing his said testimony, to divers good citizens of this state and to himself, "you took a false oath, and I can prove it," and "you took a false oath about that fence, and I will bring you up for it," and " he took a false oath and I will "make him smart for it," all which the said Hubbard is ready 'to verify and prove; wherefore he prays judgment,' &c. Replication. That said defendant, at the said time when, ' &c., in said plea, wilfully and maliciously of his own wrong, and without the cause by him the said defendant in his said 'plea alleged, did speak and publish the words, mentioned 'in said plea, of and concerning the plaintiff, in manner and 'form as the said plaintiff hath above in his declaration com'plained against him, and this the plaintiff prays may be in'quired of by the country.' From the testimony introduced on the trial in the county court, the jury, under the charge of the court, returned a verdict for the plaintiff. The defendant then moved in arrest of judgment for the insufficiency of the declaration. The county court overruled the motion, and the defendant excepted. Cahoon, Beckwith, Baylies, and Wing, for defendant. 1. The first count in the declaration is insufficient. The plaintiff should have alleged in his declaration and proved who administered the oath, and what oath was administered, and that the magistrate had competent authority to administer such oath. Arbitrators have no power to administer oaths, and there 59 v. Hubbard. |