10 Me. 374 | Me. | 1833
The opinion of the Courts, at a subsequent term, was delivered by
The plaintiff claims a right to maintain this action against the defendants, and recover damages for the .alleged trespass by them committed, in virtue of a contract made with Bridge as the agent of Boyd, in April, 1829. It appears that the logs, respecting which the contract was formed, had been before that time cut by the plaintiff, without permission, on Boyd’s land, and were then lying there. It is important to ascertain the nature and extent of the instructions and authority given by Boyd, to Bridge, in relation to the logs in question; and in the next place, the nature and consequences of the contract as made, if made in conformity to the instructions
But in the manner the contract was made by Bridge, if Boyd was bound by it, then the property of the logs was transferred to Cowan, subject, it is said, to the lien of Boyd for the amount due. But on this principle there was no lien; for the logs were in the possession of Cowan. “ No lien can be acquired, unless “ the property on which it is claimed, come into the possession “of the party claiming it.” Kinlock v. Craig, 3 T. R. 119; Whitaker on Lien, 65 ; Portland Bank v. Stubbs & al. 6 Mass. 462. Nor continue any longer than his possession of such property continues. Jones v. Pearl, 1 Stra. 556 ; Doug. 97 ; 1 East, 4; 7 East, 5. The consequence of which must be, that the absolute property vested in Cowan, contrary, not only to the repeated directions of Boyd, but the idea and intention of Bridge. However, upon a full view of the facts of the cause, touching this branch of it, and the principles of law applied to them, we are satisfied that the contract made by Bridge and Cowan was not authorized by Boyd’s instructions and think the presiding Judge’s opinion erroneous on this point; and that the contract, therefore, must be deemed a nullity, unless it has been since ratified by Boyd, as we have before observed, of which we have no evidence.
The only remaining question is, whether the plaintiff can maintain the action against the defendants on his alleged pos
On the whole, we are of opinion, that the action is not maintainable upon the evidence before us, and accordingly the verdict is set aside and a new trial granted.