28. Damages. The plaintiff in replevin is bound by the value he
puts upon the property in his writ, it is otherwise with the defend-
ant. Tuck V. Moses, 58 — 461. Washington Ice Co. v. Webster, 62
29. If a nonsuit is ordered in a replevin suit, the defendant has the
right to have the damages to that time assessed by a jury. Wash-
ington Ice Go. V. Webster, 62 — 341.
30. In a replevin suit, Avtere there is a judgment for a return, and
the defendant is the owner of the goods, the expense of procuring
teams for the purpose of removing them, which were rendered useless
by the wrongful suing out of the replevin writ, may become a por-
tion of the damages. lb.
31. But damages arising from the possible loss of customers, are
too indefinite, remote and contingent to be considered. 1 b.
32. The damages for the detention may exceed the interest upon the
value of the property replevied, as in case of the replevin of a horse
or oxen, the defendant is entitled to the value of their use, or for
what their service in use would be worth. Washington Ice Go. v.
Webster, 62—341. Grabtree v. Clapham, 67—326.
33. CoMPLAiM'T FOE CosTS. If an officer takes property by authority
of a writ of replevin without the statute bond, but does n9t complete
the service by summoning the defendant, and the writ is not entered,
the defendant can not, by filing a complaint, obtain an order requir-
ing the plaintiff to file a copy of the writ, and a judgment for a
return of the property, or for costs. Adams v. Mc Glinchy, 62 — 533.
IV. PLEADING AND EVIDENCE.
84. In replevin, a plea of non cepit alone does not deny the plain-
tiff's title to the chattels replevied. Pope v. Jackson, 65 — 162. lewis
V. Smart, 67—206.
35. And when such plea is accompanied by a brief statement alleg-
ing property in the defendant, the burden is on the defendant to
sustain his affirmative allegation. 1 b.
36. But when the brief statement alleges title in the defendant, and
not in the plaintiff, the burden is on the plaintiff to prove his title.
37. If the defendant pleads merely that he did not take the goods
he thereby admits the property to be in the plaintiff, and he thereby
throws upon the plaintiff the burden of showing only that he wrong-
fully took, or wrongfully detained the goods at the place alleged.
lewis V. Smart, 67 — 206.
38. But if, by his pleadings, he avows the taking, and justifies it on
the ground that the goods belong, not to the plaintiff, but to himself
or to some third person whose bailiff he is, and so demands a return,
the question is as to the property and right of possession of the plain-
tiff, and the burden upon the plaintiff is to establish only these. lb.
39. When the original taking by the defendant was lawful, if he
plead property in himself, it is not necessary for the plaintiff to prove
a demand prior to suing out the writ of replevin. lb.
40. The plaintiff's attorney testified that he went with an officer to
the defendant's house, took the writ from the officer, demanded the
articles replevied, which were refused, then handed the same to the
EESPONDBAT SUPERIOR — REVENUE — REVIEW. 487
officer by whom the service was made. Held, that, if the writ was
made provisionally, to be used only in case of refusal by the defend-
ant to deliver the property upon demand, it might not, it seems, be
regarded as prematurely brought. G'Neil v. Bailey, 68 — 429. See
Wehher v. Read, 65—564.
See Insurance, 60, p. 307. Master and Servant, p. 361.
Mortgage, 12, p. 371 ; 24, p. 372. Negligence,
12, p. 385. Railroad, 47, p. 467 ; 67,
p. 469. Shipping, 20.
1. An instrument, not stamped as required by act of Congress, is
admissible in evidence, when the omission is without fraudulent intent.
Emery v. Hohson, 63 — 33. Dela v. Stanwood, 61 — 51. Sawyer v.
2. A license to individuals will not protect partnership transactions,
nor will a license to a firm protect the several members in their indi-
vidual business. Harding v. Hagar, 68 — 515.
3. In August, 1866, the owner of a horse in Canaan, Vermont, took
him one and one-half miles into Canada, to a race, where he kept
him six weeks, when he returned with the horse to Canaan without
having entered him at the custom house, either in going or returning.
In the following November, the owner, without informing him that
he was a Canadian horse, sold him to the defendant, who, in the fol-
lowing June, sold him in good faith, without knowing he was smug-
gled or claimed as a smuggled horse, to the plaintiff. In August,
1867, the horse was seized and taken from the plaintiff by a U. S.
revenue officer, and, after due proceedings, sold in September. In
assumpsit brought Aug. 31, 1867, held, (1) that the horse having been
brought into the U. S. in violation of the revenue laws, became for-
feited by that act ; and (2) that the plaintiff is entitled to recover of
the defendant the value of the horse at the time of the seizure. Knee-
land y. Willard, 59 — 445.
I. WHEN" A REVIEW WILL OR WILL NOT BE GRANTED.
L WHEN A REVIEW WILL OR WILL NOT BE GRANTED.
1 . Real Action. If the demandant in a real action, after verdict
in his favor but before judgment, convey the land in controversy to
a third person, such conveyance will not entitle the defendant to de-
feat the judgment by a writ of review. Berry v. Whitaker, 58 — 422.
2. An ADMiNisTEATOK can not prosecute a writ of review in a real
action not brought to foreclose a mortgage. H.
3. Rbpoet or Rbfeeees. A review may be granted of a judg-
ment upon a report of referees, in an action referred to them by rule
of court, although no other matters in dispute between the parties
were included in the rule. Oooding v. Baker, 60 — 52.
4. Judgment for too much. Where a debtor has paid certain
items of his creditor's account, and the creditor subsequently takes
judgment for the full amount of the original account, the debtor can-
not recover back the amount thus paid and wrongfully included in
the judgment, his remedy being review. Sagar v. Springer, 60 —
5. To PUT IN Testimony. A review will not be granted to enable
a party to put in testimony which either was, or might, with reason-
able diligence, have been within his knowledge and reach at the trial
of the original suit, and was either wilfully suppressed, or negligently
omitted. ToddY. Chipman, 62 — 189.
6. Nor will a review be granted to let in additional testimony
when such testimony would not be likely to change the result, nor
when the court perceive no probability that injustice was done. lb.
7. Mistake of Counsel. A review will be granted where the
petitioner, one of several defendants in the original action, having a
good defense (as bankruptcy), was defaulted, because his counsel
failed to appear for him in defense, although requested, from the mis-
taken supposition that the counsel for the other defendants also ap-
peared for the petitioner. ShurtleffY. Thompson, &i — 118.
8. Divorce. Where a husband obtains a divorce upon his own
libel, which contains no mention of his wife's dower or alimony, and
no decree is made on that subject, the wife can not review the pro-
ceedings so far as alimony, allowance, and dower is concerned. Seii^
derson v. Henderson, 64 — 419.
9. A petition by a defendant in a suit for a review of a judgment
against him, not because the verdict is wrong, or is expected to be
reversed by the review prayed for, but to give the petitioner time to
recover judgment in a suit commenced by him against the plaintiff,
so that the judgments may be set off against each other, can not be
sustained. Pierce v. Bent, 67 — 404.
10. The fact that the defendant in a suit, requested the law court
to order the judgment which might be rendered against him, to be
rendered in term time, but judgment was rendered in vacation and ex-
ecution issued, does not make it appear that justice has not been done
through accident or mistake. lb.
11. A petition for a writ of review is to be served and entered as
an independent proceeding. If the writ be granted the order is
entered under the entry of the petition, and further proceedings un-
der the petition are ended. The writ can not be sued out until final
judgment on the petition. The writ of review should be sued out at
REVIEW— EIOT. 489
the next term after final judgment on the petition, entered as a new
action, and the case heard on that writ under the old pleadings.
Bradstreet v. Partridge, 59 — 155.
12. There must be a final disposition of the petition for review
before the writ can issue. Bradstreet v. Partridge, 61 — 335.
13. Bond. After denial of a petition for review a suit can be
maintained on a bond, filed with such petition, to obtain stay of exe-
cution on the judgment recovered in the action sought to be reviewed,
although, before suit is brought, a new petition for review, and a new
bond for the same purpose as the previous one has been filed, and a
stay of execution ordered. Kenney v. Burke, 61 — 134.
14. Upon a bond given for a supersedeas on petition for review,
conditioned to pay the amount of the debt and costs if the petition is
denied, or the amount of the final judgment on review, if it is granted,
"with interest thereon at the rate of twelve per cent," the interest is
not to be computed upon the costs of review, but upon the debt and
costs first recovered, unless reduced. Whitaker v. Berry, 64 — 236.
15. In cases where a party is not entitled as of right to a review, it
may be granted upon such conditions imposed upon the party seeking
it as the court may consider reasonable. Austin v. Dunham, 65 —
16. A review may be granted to a party who has become insane
and been placed under guardianship, upon the condition that the
petitioner will stipulate that no objection shall be made to the re-
spondent's testifying generally upon the trial of the case in review, lb.
17. And when the review is granted upon such stipulation made,
it is binding upon the legal representative of the petitioner, after his
18. If the plaintiff fails to enter a writ of review at the next term
after it is granted, the court has power, in its discretion, to allow it
to be entered at the second term. Iiook v. Ramsdell, 68 — 479.
See Pleading, 78, p. 432.
1. In an action against a town to recover three-fourths of the value
of a porgy oil factory, destroyed by a mob, (R. S., 1871, c. 123, § 8,)
the persons causing its destruction being unknown, it is no defense
that strong and offensive odors arose from the factory, and that it
was a public nuisance. Brightman v. Bristol, 65 — 426.
2. Nor that a stationary steam engine was used in the building
without a license from the municipal oflicers of the town. lb.
3. Nor, if the plaintiffs have used all reasonable diligence to dis-
cover the offenders, in good faith, and for the purpose of convicting
them, and communicated such evidence and facts as they discovered,
or were known, to the officer whose duty it was to prosecute (county
attorney) and were ready to follow his suggestions, and did so act,
even though they made no complaint to the grand jury, is it necessary
that they should furnish such evidence to the municipal officers of
the town. lb.
490 BTJLES OF COURT — SAiART — SALE.
See Watbb Cotjeses.
RULES OF COURT.
ADDiTioiiTAL Rule iis^ Chancery, vol. 59 — 605. See Equity,
144, p. 210. Peactice.
1. When the salary of a public officer is diminished during his
official term the dimiauation is prospective only. Fa/rwell v. Rock-
2. The authority which establishes the compensation of a public
officer may increase or diminish it, unless there is a constitutional
provision to the contrary. lb.
3. When it is the legal duty of a municipal corporation to pay the
salary of a public officer the latter may maintain assumpsit to enforce
performance of the duty. Ih.
See Ofpicbe, 9, p. 398.
WHAT MAT BE SOLD.
(a) Conditional sales.
(b) "When pbopbrtt passes.
(o) Validity or sales.
(d) W ABB ANT Y.
SALE UNDER LEGAL PROCESS.
I. WHAT MAT BE SOLD.
1. A thing may be sold or mortgaged which has only a potential
existence at the time, if it is specific, identified, and the vender or
mortgager has a present actual interest in it, or concerning it. Far-
rar v. Smith, 64 — 74. Emerson v. European & N. A. JR. R. Co.,
2. Example. Manure, not in existence at the time of the sale, but
to be made within a specified time, at a specified place, and by the
particular animals then owned and possessed by the vender, may be
legally sold. Farrar v. Smith, 64 — 74.
3. A person can not sell the products of a field which he does not
own at the time of the sale but which he expects to own. lb.
4. A man can not sell that which he does not have. Emerson v.
European & N. A. R. B. Co., 67—387.
5. Although he may sell property of which he is potentially but not
actually possessed, the thing sold must be specific and identified. lb.
6. He may make a valid sale of the wine that a vineyard is expected
to produce, or the grain a field may grow in a given time, but the
vineyard or the field must be his at the time of the sale. lb. Post, 41.
7. A SYMBOLICAL delivery of large quantities of logs, landed on a
stream preparatory to driving, is sufficient. Bethel Steam Mill Co.
V. Brown, hi — 9.
8. And a survey of such logs by a person mutually agreed upon by
the parties to the sale, and the putting thereon by the vender the
vendee's mark as they are thus landed, constitute a sufficient delivery
even as against subsequent purchasers, although by the terms of the
contract of sale the vender is bound to deliver the logs at a specified
place many miles below the landing. lb.
9. A transfer of an elevator order, with notice thereof to the eleva-
tor company, and a partial delivery of the grain, is sufficient to trans-
fer the property in the whole. Warren v. Milliken, 57 — 97.
10. On April 30, 1868, the plaintiff by his agent verbally negotiated
with the defendant to sell to the latter 170 barrels and six half-barrels
of mackerel, at a specified price, and being all the mackerel stored in
agent's store-house. On May 1st, following, the defendant paid the
plaintiff's agent $600, and received a written paper reciting the re-
ceipt of "S600 on account of mackerel in store No. 10, Long Wharf,
at the purchaser's risk as regards fire." The next day the defendant
caused each barrel to be examined by a cooper who refilled with
pickle such as needed it, and found two in which the fish had rusted,
which were subsequently excepted and carried away by the plaintiff's
agent. On or before May 9th, the defendant had paid $2,900 on
account of the mackerel. During the night of May 9th, fifty barrels
were stolen. Subsequently and at different times the remaining bar-
rels were taken away by the defendant. Held, that the sale was com-
plete, and that the loss of the mackerel stolen fell upon the vendee.
Chase V. Willard, 57—157.
11. Against Cebditobs, oe Subsbquent Purchasers. Although
the rule which requires a delivery to a bona fide purchaser, who has
paid the price for personal property, as against a second purchaser,
or attaching creditor, has been liberally construed, it has not been
abrogated and some evidence of a delivery is required. McKee v.
Qa/rcelon, 60 — 165. Farrar v. Smith, 64 — 74.
12. A husband, having purchased some neat stock with money lent
him by his wife for the purpose, and put it upon a farm carried on by
him and on which she resided with him, thereupon for the purpose of
repaying her for the money conveyed to her the stock by an absolute
bill of sale which he delivered to her, and which she ever after
retained. No other delivery of the stock was made, and it remained
and was used on the farm as before. Three months thereafter, the
defendant, as an officer, attached some of the stock on a writ against
the husband. In replevin by the wife, field, that there was no suffi-
cient delivery of^the stock from the husband to the wife. McKee v.
Garcelon, 60 — ^165. j
13. Also, held, that notice of the sale to the officer holding the
writ, before service, uncommunicated to the attaching creditor, was not
notiQB to the latter, lb.
14. On Nov. 13, 1869, A. contracted with the plaintiff bridge com-
pany, to furnish materials and build two granite piers of Hallowell
granite, according to certain specifications, for fourteen dollars per
cubic yard, five hundred dollars to be paid down, and five hundred
dollars monthly, until the piers shall be completed and accepted, when
the balance is to be paid, and all to be completed before the following
spring freshets. Thereupon A. procured the blocks of granite, hauled
them upon land leased by him near the contemplated location of the
bridge, and commenced dressing and fashioning them. The plaintiffs
duly paid the first four instalments, and before the next one became
due, and before any of the granite was placed in the pi«rs, it was
attached by A.'s creditor. In replevin by the bridge company, held,
that the plaintiffs, acquired no title by virtue of the contract and the
payments made, or any rights or interest in the granite as against the
attaching creditor. Fairfield B. Co. v. Nye, 60 — 372.
15. Also, held, that the bridge company could not hold the stone as
against the attaching creditor by virtue of an absolute bill of sale
thereof from A. to the company, the consideration of which was the
four payments made in accordance with the terms of the original con-
16. When a bill of sale of personal property is given, there must
be actual or symbolical delivery, as between the vendee and subse-
quent purchasers or attaching erfeditors. lb.
17. In case of a sale of a specific quantity of an article, as grain,
from a larger bulk, the separation and delivery of a part of the spec-
ified quantity, does not vest in the vendee the title to any portion of
the bulk not separated and delivered. Morrison v. Dinghy, 63 — 553.
18. But where the owner of grain in bulk sold a certain number of
bushels therefrom, and received his pay, and the vendee took away a
portion, it was held, that the property in the part sold, but not sepa-
rated from the heap, passed to the vendee. Probably upon the prin-
ciple that the vender became the bailee of the purchaser. lb.
19. If goods be sold by number, weight or measure, the sale is
incomplete until the specific property be separated and identified. lb.
See Post, 41.
Feauds, Statute of, 9, p. 279.
Law and Fact, 18, p. 340.
(a) Conditional sales.
(b) When pbopebtt passes.
(c) Validity of sale.
(a) Conditional sales.
20. The plaintiffs, merchants in Boston, through a broker, on July
5th, sold for cash a lot of flour which they shipped to the vendees in
Portland two days after, and on the 8th of July forwarded a bill with
"terms cash" printed thereon. On the 10th of July, one of the plain-
tiffs went to Portland, and ascertaining the vendees had failed, and
that the flour had been attached, replevied it from the attaching offi-
cer. Held, that by the lex loci, the sale was upon condition of pay-
ment on cash upon delivery ; and that the action was maintainable
without previous demand. Stone v. Perry, 60 — 48.
21. Possession. When a note is given for personal property pur-
chased, in which it is stipulated that the title to the property shall
remain in the payee until the note is paid, the payee is entitled (in
the absence of any agreement to the contrary) to the possession
before the expiration of the term of credit. Bunker v. McKenney,
22. Nor will an extension of the time of paymerit by the payee
interfere with his right of possession. lb.
23. Sample. When a sale of merchandise is made by sample, and
delivered to the vendee upon the condition that if when received it
shall be found to agi-ee with the sample, the vendee shall give the
vender a note for the price, the giving of the note is a condition
precedent, and until that is done or waived, the title does not pass
from the vender. Sneed v. Lord, 66 — 580.
24. Where the vendee, after receiving the merchandise, became
insolvent, and wrote to the venders informing them of his inability to
pay, but not sending the note or mentioning it, it was held, that this
inforination must be regarded as notice that the vendee had decided
not to give the note, and for the purpose of enabling the creditor to
resume possession of his property, and that after the creditor had
obtained possession, but had been prevented from removing the prop-
erty by the purchaser, the latter did not, by sending the note for the
price to the vender, obtain any title to the property. Ih.
25. Right to RBTtrEH^. When one receives goods and chattels of
another on a contract, by which he has a right to return them or pay
a stipulated price therefor, the property passes and he is regarded as
the purchaser. Frye v. Burdick, 67 — 411.
26. But where the defendant received property of the plaintiff and
gave him a receipt therefor, describing the property, stating its value,
and containing a promise to keep it in good order and condition and
"return it at the end of two years, unless paid for," the defendant
was not regarded as the bailee of the property, but the purchaser. Ih.
27. Second Sale by Vender. When property is sold upon con-
dition that the title is to remain in the vender until paid for, it may be
sold by the vender any time before it is completely paid for. Part
payment by the vendee will not prevent the vender from giving a
good title to a third party. Everett v. Hall, 67 — 497.
28. A. purchased a shingle machine, giving the seller a mortgage
on the machine to secure the purchase money. On the day of ttft
purchase, before the mortgage was recorded, A. sold the machine to
the defendant under an agreement that the title should remain in A.
until the machine was paid for, the defendant taking and keeping pos-
session. Before the mortgage was recorded the defendant paid A.
something toward the machine, and after its record paid the balance.
Held, that the title was in the assignee of the mortgage, and that he
could recover its fuU value in trover. lb,
29. Whether the defendant would have any remedy in equity, for
his advances made before the record of the mortgage, quaere. lb.
(b) When property passes.
30. If it be agreed that goods sold shall be hauled by the vender to
a place specified, it does not necessarily follow that the title thereto
does not pass till they reach the place designated. The property may
pass so as to take the case out of the statute of frauds, at the time
the agreement is made, if the parties so intend ; and whether or not
such was their intention, in any given case, is a question for the jury,
to be determined from the words, acts, and conduct of the parties, and
all the circumstances. Dyer v. Ziibby, 61 — 45.
31. A building was sold and paid for, to be removed by a day des-
ignated, but was not so removed ; held, that the vendee did not there-
by forfeit his title thereto, but only became liable to his vender for
the damages occasioned by its continuance upon the land after the
date fixed and in moving it subsequently, to the time agreed upon
therefor. Davis v. Emery, 61 — 140.
Paetneeship, 33, p. 408.
(c) Validity of sale.
32. A master may sell the whole or a part of a vessel according to
his authority. Gates v. Thompson, 57—442. ,
33. The sale, by the master, of such parts of a vessel as belong to
part-owners who were not, but might have been, notified by telegraph
in season to act in the premises before the sale, is void. Miller v.
34. Thus a vessel went ashore on one of the "Wolves" in the Prov-
ince of New Brunswick, on the morning of July 6, and the master,
leaving her in charge of the mate, arrived at noon of the same day in
Eastport. Between Eastport and New York there was constant tele-
graphic communication, and a telegram sent by the master on his
arrival in Eastport to the plaintiffs resident in New York, would, in
the usual course of business, have received an answer several hours